Kenneth R. Fox v. Wendy R. Fox ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
KENNETH R. FOX
v. Record No. 0721-97-4
WENDY R. FOX
MEMORANDUM OPINION * BY
and JUDGE JERE M. H. WILLIS, JR.
MARCH 17, 1998
KENNETH R. FOX
v. Record No. 1094-97-4
WENDY R. FOX
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Steven M. Garver (Cheryl G. Rice; Law Offices
of Steven M. Garver, on briefs), for
appellant.
Stephen A. Friedman (Denman A. Rucker;
Joseph, Greenwald & Laake, P.A.; Rucker &
Rucker, on brief), for appellee.
In these consolidated appeals from a final decree granting
his wife, Wendy R. Fox, a divorce, Dr. Kenneth R. Fox contends
that the trial court erred (1) by denying him due process of law,
(2) by proceeding against him without proper service, (3) in
determining child support, (4) in determining spousal support,
(5) in determining custody and visitation, (6) in classifying
marital assets and entering a monetary award thereon, (7) by
exercising jurisdiction over non-parties, (8) by awarding
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
attorneys' fees and costs, (9) by entering and amending a writ of
ne exeat, and (10) by failing to grant a recusal motion. We
affirm the judgment of the trial court.
On appeal, we review the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the party prevailing below. Pommerenke v. Pommerenke, 7 Va.
App. 241, 244, 372 S.E.2d 630, 631 (1988).
The parties were married on November 29, 1975. They have
two minor children. On February 2, 1996, Dr. Fox filed in the
trial court a bill of complaint for divorce. On February 21,
1996, Ms. Fox filed an answer and cross-bill. On April 9, 1997,
the trial court dismissed Dr. Fox's bill of complaint because of
his refusal to comply with discovery requests and to abide by the
court's orders. The trial court granted Ms. Fox a divorce on the
ground of cruelty. The final decree, inter alia: (1) awarded
Ms. Fox custody of the parties' children; (2) continued a
protective order prohibiting Dr. Fox from being in the vicinity
or presence of Ms. Fox and the parties' children; (3) reserved
jurisdiction to award Ms. Fox spousal support; (4) ordered Dr.
Fox to pay child support of $7,050 per month; (5) awarded a lump
sum monetary award to Ms. Fox in the amount of $1,450,000; and
(6) found Dr. Fox in contempt for violating the trial court's
orders to pay child support, spousal support, and mortgage and
insurance payments on the marital residence. The trial court
ordered Dr. Fox to pay Ms. Fox's attorneys' fees and costs.
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I. DUE PROCESS
Dr. Fox raises numerous contentions that the trial court
denied him due process of law under the Virginia and United
States Constitutions. He argues that the trial court committed
reversible error when it refused to allow his attorney: (1) to
file or argue motions or pleadings; (2) to cross-examine
witnesses; (3) to present evidence or proffer testimony; and (4)
to make objections.
A. Background
At a hearing conducted on March 26, 1996, the trial court
ordered Dr. Fox to pay monthly child support in the amount of
$2,149, monthly spousal support in the amount of $5,440, and the
mortgage and insurance payments on the marital residence. These
rulings were memorialized in an order entered on May 3, 1996.
On May 9, 1996, the trial court issued a rule against Dr.
Fox to show cause why he should not be held in contempt for his
failure to pay spousal support, pursuant to its March 26 rulings.
At a hearing conducted on May 31, 1996, the trial court
ordered Dr. Fox to comply with Ms. Fox's requests for discovery.
That ruling was memorialized in an order entered on June 3,
1996. On July 19, 1996, the trial court ordered Dr. Fox to
provide Ms. Fox with an accounting of the parties' children's
trusts by July 22, 1996. The trial court also ordered Dr. Fox to
respond to Ms. Fox's request for documents by August 5, 1996.
Dr. Fox never produced these documents.
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On August 16, 1996, Ms. Fox testified that Dr. Fox had
failed: (1) to pay spousal support, (2) to provide an accounting
of the parties' children's trusts, (3) to produce documents
pursuant to discovery, and (4) to pay attorneys' fees, as ordered
by the trial court. The trial court ordered "[t]hat Kenneth Fox
present himself on the next court date for the purpose of having
Kenneth Fox explain to the Court why he should not be
incarcerated for his failure to pay spousal support as ordered."
Dr. Fox failed to appear.
On August 27, 1996, the trial court issued a rule against
Dr. Fox to show cause why he should not be held in contempt for
violating the orders of the trial court and ordered him to appear
in person before the trial court on September 6, 1996. Dr. Fox
did not appear.
On September 6, 1996, the trial court entered an order
providing that Dr. Fox "shall not file any motions or pleadings
in this Court until such time as he personally appears before
this Court." The trial court issued an alias rule against Dr.
Fox to appear before the trial court on September 20, 1996, to
show cause why he should not be held in contempt for violating
the trial court's orders. Because Dr. Fox did not appear, the
trial court did not permit Dr. Fox's counsel to cross-examine a
witness. However, the trial court permitted Dr. Fox's counsel to
offer argument and to state his objections to the orders.
Because Dr. Fox did not appear on September 20, 1996, the
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trial court issued a second alias rule to show cause against Dr.
Fox, ordering him to appear on October 4, 1996. Counsel for Dr.
Fox objected and noted his exception to this order.
The October 4, 1996 hearing was continued to October 10,
1996. Dr. Fox did not appear. At that hearing, the trial court
granted custody of the parties' children to Ms. Fox, enjoined Dr.
Fox from sending correspondence to the children at their school,
and extended a protective order originally issued by the juvenile
and domestic relations court. In response to Dr. Fox's counsel's
attempt to file certain discovery documents, the following
conversation ensued:
THE COURT: Dr. Fox has a history of utter
total disrespect and contempt for this Court
and its orders. That's why this Court took
the position that he could not - because of
his track record, he could not file anything
until he came before this Court and answered,
in person, as to why he did or didn't do the
things that are alleged that have been the
basis for this Court's order and the rule to
show cause.
* * * * * * *
Dr. Fox is getting you to do the things that
he can't do. It's a classic end run. Why
doesn't Dr. Fox show up?
[DR. FOX'S COUNSEL]: Well, I have told Dr.
Fox that he has an obligation to appear.
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On November 1, 1996, the trial court suspended Dr. Fox's
continuing obligation to pay spousal support and increased child
support by a like amount, to $7,589. The trial court issued a
capias for Dr. Fox to show cause why he should not be held in
contempt for his refusal to comply with the trial court's orders.
By its order of October 10, 1996, the trial court set
November 4, 1996, as the date for the deposition of Dr. Fox and
for the production of documents. On November 4, 1996, neither
Dr. Fox nor his counsel appeared, and no documents were produced.
On November 15, 1996, the trial court granted Ms. Fox's
motion for judgment in the amount of $24,979 for spousal support
arrearages for the period between June 1, 1996 and October 18,
1996. Pursuant to its ruling at the November 1, 1996 hearing,
the trial court also entered an order requiring The Scudder Funds
and Signet Bank to provide statements indicating any financial
assets held in trust for the parties' children. Counsel for Dr.
Fox stated their objections at this hearing and noted their
exceptions to the orders.
On February 7, 1997, the trial court conducted a hearing on
Ms. Fox's motion for a writ of ne exeat. Dr. Fox did not appear,
and his counsel was not permitted to participate. The trial
court granted the writ, finding that sufficient cause existed to
restrain the departure of Dr. Fox from the trial court's
jurisdiction.
On March 7, 1997, March 21, 1997 and April 5, 1997, the
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trial court issued orders requesting information from Dr. Fox and
non-parties concerning the identification and valuation of
marital property.
On April 7, 1997, the trial court conducted an ore tenus
hearing on the matter of the parties' divorce. Because Dr. Fox
failed to appear, his counsel was not permitted to participate in
the proceedings. Five witnesses, including Ms. Fox, presented
testimony on the grounds for divorce. By agreement of counsel,
the trial court heard testimony by proffer on the nature,
identity and value of the marital assets.
On April 9, 1997, Ms. Fox mailed and sent by facsimile to
all counsel of record a proposed "Findings of Fact, Conclusions
of Law, Judgment of Absolute Divorce and Monetary Award." The
trial court entered the final decree of divorce that day.
B.
Dr. Fox contends that the trial court unconstitutionally
denied him due process. U. S. Const. amends. V, XIV; Va. Const.
art. I, § 11. After reviewing the record, we hold that the trial
court's imposition of the non-participation sanction against Dr.
Fox comports with fundamental fairness and is consistent with due
process of law.
"Notice and opportunity to be heard are fundamental
requirements of due process of law." Lockhart v. Baxter, 12 Va.
App. 600, 604, 405 S.E.2d 434, 437 (1991). Where a party has the
opportunity to present testimony, but chooses not to do so, there
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is no denial of due process. Venable v. Venable, 2 Va. App. 178,
182, 342 S.E.2d 646, 649 (1986).
We find no error in the trial court's requiring Dr. Fox to
appear personally prior to permitting him to proceed further.
Dr. Fox asks for relief incompatible with justice. He seeks to
wield the trial court's sword and shield to prosecute his claims,
while simultaneously engaging in a pattern of contumacious
behavior that both insults the dignity of the trial court and
deprives Ms. Fox of her opportunity to fully and effectively
pursue the litigation.
Courts are invested with the power, and
charged with the duty, of enforcing their
decrees. Such decrees are the mandates of
the law, and courts must have the power of
enforcing them, if organized society is to be
maintained.
Branch v. Branch, 144 Va. 244, 251-52, 132 S.E. 303, 305-06
(1926).
The trial court did not prevent Dr. Fox from cross-examining
witnesses, presenting evidence, making objections, or from
arguing and filing motions, pleadings and discovery. He was
afforded ample notice and opportunity to do all of these things.
See Blinder, Robinson & Co., Inc. v. State Corp. Comm'n, 227 Va.
24, 313 S.E.2d 652 (1984). Instead, he deliberately and
willfully elected to ignore the trial court's repeated commands
that he answer for his refusal to pay support and that he comply
with discovery orders. Thus, he elected not to participate in
the proceedings.
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Dr. Fox held the proverbial keys for his "release" from the
sanction of the trial court. That he chose not to avail himself
of the means for his release does not vindicate his claim on
appeal that the results were not to his liking. See Rule
4:12(b)(2) (sanctions for failing to make discovery); Woodbury v.
Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990) (trial
court has broad discretion in determining what sanctions will be
imposed upon litigant who fails to respond timely to discovery).
We find no denial of due process in the proceedings.
II. SERVICE OF PROCESS
Dr. Fox contends that service upon him of the second alias
rule to show cause was improper. Thus, he contends that the
trial court erred in subsequently issuing a capias for him.
On August 27, 1996, the trial court issued a rule to show
cause against Dr. Fox, and on September 6, 1996, it issued an
alias rule. When Dr. Fox failed to appear in obedience to either
rule, the trial court issued a second alias rule. A private
server served the second alias rule on Dr. Fox personally in
Maryland. Dr. Fox argues that this service was invalid because
the certificate of return, while notarized, does not contain the
server's signature. He also argues that service outside of the
Commonwealth is insufficient to confer in personam jurisdiction
in contempt proceedings. The trial court found that Dr. Fox had
actual notice of the hearing noticed by the second alias rule,
but failed to appear.
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We need not address the validity of the service of the
second alias rule. Dr. Fox did not appear, and the trial court
did not proceed upon that rule. The trial court issued a capias,
commanding the sheriff to seize Dr. Fox, if he was found within
the sheriff's bailiwick, and to bring him before the trial court
to show cause why he should not be held in contempt for failing
to comply with the trial court's orders. The capias was grounded
upon Dr. Fox's refusal to comply with the trial court's orders.
It was not based upon the validity of the second alias rule.
Accordingly, we find no error in the issuance of the capias.
III. CHILD SUPPORT
Dr. Fox contends that the trial court abused its discretion
in deviating from the presumptive guideline amounts specified in
Code § 20-108.2 in determining pendente lite and permanent child
support.
"Code § 20-107.2(2) vests discretion in
the trial court in awarding child support and
such awards will not be reversed on appeal
unless plainly wrong or unsupported by the
evidence." A rebuttable presumption exists
that the amount derived from the guidelines,
Code § 20-108.2, is correct. Code
§ 20-108.1(B). "Once the presumptive amount
is determined, the trial court may deviate
. . . if such deviation is justified by
factors recognized in Code §§ 20-108.1 and
20-107.2." "Whenever a child support award
varies from the guidelines, Code
§ 20-108.2(A) requires the trial court to
make written findings of fact . . .
explaining why one or more of these [Code
§§ 20-108.1 and 20-107.2] factors would make
it 'unjust and inappropriate' to apply the
guidelines to the case."
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Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154, 155-56
(1995) (citations omitted).
On May 3, 1996, the trial court awarded pendente lite child
support at the level set forth in the statutory guidelines. The
trial court noted at that time that a deviation would have been
appropriate due to the standard of living established during the
marriage and the earning capacity and resources of Dr. Fox. See
Code § 20-108.1(B)(10) and (11). On November 1, 1996, the trial
court modified the child support award due to the financial
hardship placed upon Ms. Fox and the parties' minor children as a
result of Dr. Fox's continued refusal to pay spousal support.
This modification conformed to the prior award and suspended
payment of further spousal support.
In the final decree of divorce, the trial court held that
Ms. Fox was entitled to spousal support, and reserved
jurisdiction to make a future spousal support award. Pending
award of spousal support, the trial court ordered Dr. Fox to pay
$7,050 per month in child support. The trial court considered
the statutory factors set forth in Code § 20-108.1(B), and
concluded that application of the statutory guidelines would be
"unjust and inappropriate" under the circumstances at that time.
We find no abuse of discretion, and affirm the determination
of child support.
IV. SPOUSAL SUPPORT
Dr. Fox contends that the trial court erred in setting the
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pendente lite and permanent spousal support awards. He argues
that the awards are excessive.
The trial court considered the evidence and all of the
statutory factors in fashioning the support awards. Its findings
are supported by the record. See Code § 20-107.1. We find no
abuse of discretion, and affirm the awards. See Huger v. Huger,
16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993). See also
Thomasson v. Thomasson, 225 Va. 394, 397 n.1, 302 S.E.2d 63, 65
n.1 (1983) (permitting trial court to reserve power to modify
spousal support).
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V. CUSTODY AND VISITATION
Dr. Fox contends that the trial court erred in its custody
and visitation determinations.
"In matters of custody, visitation, and related child care
issues, the court's paramount concern is always the best
interests of the child." Farley v. Farley, 9 Va. App. 326,
327-28, 387 S.E.2d 794, 795 (1990). On review, "the 'decision of
the trial judge is peculiarly entitled to respect for he saw the
parties, heard the witnesses testify and was in closer touch with
the situation than the [appellate] Court, which is limited to a
review of the written record.'" Sutherland v. Sutherland, 14 Va.
App. 42, 44, 414 S.E.2d 617, 618 (1992) (citation omitted).
The trial court saw the parties and heard the evidence.
Having reviewed the record, we find that it supports the decision
to award Ms. Fox custody of the parties' children and to deny
visitation to Dr. Fox.
Dr. Fox contends also that the trial court erred in entering
child visitation orders without the notice to and endorsement by
his counsel and the guardian ad litem.
Rule 1:13 provides that:
Drafts of orders and decrees shall be
endorsed by counsel of record, or reasonable
notice of the time and place of presenting
such drafts together with copies thereof
shall be served by delivering or mailing to
all counsel of record who have not endorsed
them. Compliance with this rule . . . may be
modified or dispensed with by the court in
its discretion.
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(Emphasis added).
All counsel of record, including the guardian ad litem, were
present at the trial. Counsel for Dr. Fox was not permitted to
participate and the guardian ad litem declined the trial court's
repeated offer to examine the witnesses. Counsel for Dr. Fox
objected to his exclusion from participation and to the trial
court's findings and rulings. At the conclusion of the trial,
the trial court requested findings of facts and conclusions of
law from Ms. Fox. Her counsel gave notice that the proposed
findings and conclusions of law would be submitted forthwith.
See State Hwy. Comm'r v. Easley, 215 Va. 197, 201, 207 S.E.2d
870, 873 (1974) (noting that rule designed to protect parties
without notice).
"All that remained to be done was the preparation and entry
of the [decree] to end the case in the trial court." Davis v.
Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 93 (1996). Ms. Fox's
counsel sent a facsimile and mailed a copy of the proposed
findings to all counsel of record. The trial court entered the
final decree of divorce that same day. Following entry of the
final decree, neither counsel for Dr. Fox nor the guardian ad
litem requested an opportunity to endorse the final decree.
We hold that, under the circumstances of this case, the
trial court did not abuse its discretion in dispensing with the
requirement that the final decree be endorsed by all counsel of
record. Compare Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d
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610, 612 (1991), with Cofer v. Cofer, 205 Va. 834, 836, 140
S.E.2d 663, 665 (1965) (reversing order entered without notice
that adversely affected rights of infants).
VI. MONETARY AWARD OF MARITAL ASSETS
Dr. Fox contends that the trial court abused its discretion
in the determination and award of marital assets. Despite having
presented us with a question on appeal, Dr. Fox has advanced no
argument thereon. We will not construct an argument for him.
Accordingly, we do not address this question. See Fitzgerald v.
Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988).
VII. JURISDICTION OVER NON-PARTIES
Dr. Fox contends that the trial court erred in exercising
subject matter jurisdiction over certain trusts established for
the parties' children and over various other entities.
[T]he court, upon request of either party,
shall determine the legal title as between
the parties, and the ownership and value of
all property, real or personal, tangible or
intangible, of the parties . . . .
Code § 20-107.3.
Virginia's statute "mandates" that trial
courts determine the ownership and value of
all real and personal property of the
parties. But, consistent with established
Virginia jurisprudence, the litigants have
the burden to present evidence sufficient for
the court to discharge its duty.
* * * * * * *
Adequate discovery techniques are available
to the parties to enable them to obtain
evidence to identify, classify or evaluate
marital or separate property. The court has
available and should exercise adequate
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sanctions to deal with the reluctant or
recalcitrant party or witness who fails or
refuses to disclose relevant evidence.
Bowers v. Bowers, 4 Va. App. 610, 617-18, 359 S.E.2d 546, 550-51
(1987) (citation omitted).
While Dr. Fox argues that the trial court lacked subject
matter jurisdiction to identify and value assets held by him and
by the parties' children, he provides us no authority for that
proposition. Nor does he argue that the non-parties objected to
participation. Because of Dr. Fox's obstreperous conduct in
refusing to comply with discovery orders, the trial court
properly sought the direct assistance of non-parties to enable it
to discharge its duties under the statute.
Dr. Fox also appears to contend that the trial court erred
in finding that various entities were, in fact, his alter egos.
He advances no argument to support this contention, and we will
construct none for him on appeal.
However, we note that:
"[W]hen a corporation will be regarded as the
adjunct, creature, instrumentality, device,
stooge, or dummy of another corporation is
usually held to be a question of fact in each
case. * * *; and courts will disregard the
separate legal identities of the corporation
only when one is used to defeat public
convenience, justify wrongs, protect fraud or
crime of the other."
* * * * * * *
"Notwithstanding, when the facts justify it,
the courts will look beyond the mere
corporate entity to the persons who compose
the corporation."
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Lewis Trucking Corp. v. Commonwealth, 207 Va. 23, 31-32, 147
S.E.2d 747, 753 (1966) (citations omitted).
The trial court found that Dr. Fox "embarked upon a scheme
to defraud both [Ms. Fox] and the taxpayers of this jurisdiction
through the use of a series of limited partnerships, trusts and
corporations which in reality are simply an attempt by [Dr. Fox]
to fraudulently hide marital assets and prevent their proper
distribution." The record supports the trial court's
determination that the various entities and Dr. Fox shared a
unity of interest and ownership, such that their separate
personalities no longer existed. See 18 Am. Jur. 2d Corporations
§ 45. See also 62B Am. Jur. 2d Process § 284 (noting the
exception to the general rule that a corporation is subject to
service of process where the corporation served is the alter ego
of the defendant).
We affirm the trial court.
VIII. AWARD OF ATTORNEYS' FEES AND COSTS
Dr. Fox contends that the trial court abused its discretion
in the award of attorneys' fees and costs.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987).
On April 30, 1997, the trial court entered judgment against
Dr. Fox for Ms. Fox's attorneys' fees and costs in the amount of
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$203,260.77. The trial court found that:
[B]ecause of [Dr. Fox's] extreme behavior and
continuing direct contempt of the Court's
orders, and [Dr. Fox's] nearly complete lack
of cooperation in providing discovery,
including his intentional and actual efforts
to impede discovery, [Ms. Fox] has been
required to expend extraordinary and
excessive amounts of money on attorneys' fees
and costs . . . ."
Under the circumstances, the award was appropriate. We find no
abuse of discretion.
IX. WRIT OF NE EXEAT
Dr. Fox contends that the evidence does not support a
finding that he was in Virginia when the trial court entered and
subsequently amended the writ of ne exeat. He argues that the
writ cannot restrain the departure of one who has already left.
A writ of ne exeat:
[F]orbids the person to whom it is addressed
to leave the country, the state, or the
jurisdiction of the court. Available in some
cases to keep a defendant within the reach of
the court's process, where the ends of
justice would be frustrated if he should
escape from the jurisdiction.
Black's Law Dictionary 929 (5th ed. 1979). The writ is a
proceeding in equity to secure bail. It may not be granted
unless: (1) a debt for a sum certain is due; (2) it is an
equitable demand without recourse at law, except as "in account,
and some other cases of concurrent jurisdiction"; and (3) the
person to whom the writ is addressed is about to "quit[] the
Country." Rhodes v. Cousins, 27 Va. (6 Rand.) 657, 659 (1828).
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Ms. Fox sought the writ and submitted an affidavit
incorporating by reference the statements in her petition. She
averred that Dr. Fox had not paid certain child and spousal
support obligations and that the parties' children's trust
account funds ($341,253.90) had been removed in contravention of
a prior order. She also averred that she believed that Dr. Fox
was preparing to relocate to the Bahamas. She testified as to
the basis for that belief.
After a hearing on the petition, the trial court entered the
writ, directing the sheriff to restrain Dr. Fox's departure from
Virginia, with bail set at $400,000. In the final decree, the
trial court increased the amount of bail to $1,000,000.
The evidence, viewed in the light most favorable to Ms. Fox,
supported the finding that Dr. Fox was preparing to leave the
United States permanently. However, the record does not reflect
that at the time the trial court issued the writ, Dr. Fox was
present in Virginia.
Because of its potential to restrict a person's liberty, the
writ of ne exeat merits close judicial scrutiny. Execution of
the writ is akin to a prohibitory injunction. It restrains the
departure of a person from the jurisdiction of the court so as to
prevent irreparable harm. Here, the writ sought to secure
performance of the trial court's decrees and to ensure that Dr.
Fox would provide for his former wife and their minor children.
The circumstances in this case support the trial court's
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amendment of the writ in the final decree of divorce. Dr. Fox
alleges no prejudice. At no time has he been forced to give bail
to secure his liberty. He has not moved the trial court to quash
the writ. The amendment serves merely to balance the equities
and to offer Ms. Fox and the parties' children a mechanism by
which they may seek to bar Dr. Fox's escape from Virginia upon a
subsequent return. We find no abuse of discretion in increasing
the amount of bail.
X. MOTION TO RECUSE
Dr. Fox contends that the trial judge erred in declining to
recuse himself. We disagree.
While stating that Dr. Fox had very low credibility, the
trial court told Dr Fox's counsel that:
Every time he comes into this courtroom . . .
as far as I'm concerned, Dr. Fox starts off
with a clean slate, but everything that I
have seen about Dr. Fox at this point is
totally unworthy of belief.
In discussing experts, the trial court stated:
Well, Dr. Fox can hire anyone that he wants.
And I will give due consideration to the
credentials and testimony of any expert that
he brings in here.
I will not -- I will not prejudge
anyone, but I do reserve the right to call
them as I see them after I hear their
credentials and after I hear them testify.
"It is within the trial judge's discretion to determine
whether he harbors bias or prejudice which will impair his
ability to give the defendant a fair trial." Terrell v.
Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991)
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(citation omitted). Having reviewed the record, we cannot say
that the trial judge abused his discretion in declining to recuse
himself.
Affirmed.
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