William H. Jennings, Sr. v. Margaret D. Jennings , 26 Va. App. 530 ( 1998 )


Menu:
  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Willis and Overton
    Argued at Norfolk, Virginia
    WILLIAM H. JENNINGS, SR.
    OPINION BY
    v.        Record No. 1143-97-1        JUDGE JERE M. H. WILLIS, JR.
    FEBRUARY 10, 1998
    MARGARET D. JENNINGS
    FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Frederick B. Lowe, Judge
    Debra C. Albiston (Cynthia E. Cordle;
    Kaufman & Canoles, on briefs), for appellant.
    Moody E. Stallings, Jr. (Kevin E.
    Martingayle; Stallings & Richardson, P.C., on
    brief), for appellee.
    William H. Jennings, Sr., appeals the trial court's refusal
    to vacate the parties' final decree of divorce.   He contends that
    Margaret D. Jennings perpetrated a fraud upon the court by filing
    a false affidavit in which she alleged that she had exercised due
    diligence in seeking to locate him.   We affirm the judgment of
    the trial court.
    The parties were married on June 30, 1936.   Ms. Jennings
    sued for divorce in November, 1990.   Seeking constructive service
    of process upon Mr. Jennings by order of publication, she
    executed an affidavit providing Mr. Jennings' last known post
    office address, attesting that he was not a resident of Virginia,
    and stating that "due diligence" had failed to ascertain his
    whereabouts.   Service of process on Mr. Jennings by order of
    publication was completed.   A final decree of divorce a vinculo
    matrimonii was entered on February 11, 1991.
    On June 19, 1995, Mr. Jennings filed a bill of complaint
    seeking to vacate the divorce decree on the ground that it had
    been obtained by fraud.    See Code § 8.01-428(D).     The issue on
    appeal is whether the trial court erred in ruling that Mr.
    Jennings failed to prove that Ms. Jennings perpetrated a fraud
    upon the court.
    A court may "entertain at any time an independent
    action . . . to set aside a judgment or decree for fraud upon the
    1
    court."   Code § 8.01-428(D).       Because "judicial proceedings must
    have a certainty of result, and a high degree of finality must
    attach to judgments," we construe the language contained in Code
    § 8.01-428(D) narrowly.    Byrum v. Lowe & Gordon, Ltd., 
    225 Va. 362
    , 365, 
    302 S.E.2d 46
    , 48 (1983) (citation omitted).
    In seeking to set aside the court's decree, Mr. Jennings
    bore the burden of proving fraud by clear and convincing
    evidence.    See Batrouny v. Batrouny, 
    13 Va. App. 441
    , 443, 412
    1
    The necessary elements of this action in equity are:
    "(1) a judgment which ought not, in equity
    and good conscience, to be enforced; (2) a
    good defense to the alleged cause of action
    on which the judgment is founded; (3) fraud,
    accident, or mistake which prevented the
    defendant in the judgment from obtaining the
    benefit of his defense; (4) the absence of
    fault or negligence on the part of the
    defendant; and (5) the absence of any
    adequate remedy at law."
    Charles v. Precision Tune, Inc., 
    243 Va. 313
    , 317-18, 
    414 S.E.2d 831
    , 833 (1992) (citation omitted).
    - 2 -
    S.E.2d 721, 723 (1991).    "Clear and convincing evidence is that
    degree of proof which will produce in the mind of the trier of
    facts a firm belief or conviction concerning the allegations
    sought to be established."    Ashmore v. Herbie Morewitz, Inc., 
    252 Va. 141
    , 147, 
    475 S.E.2d 271
    , 275 (1996), cert. denied, 
    117 S. Ct. 1254
    (1997) (citation omitted).      See Aviles v. Aviles, 
    14 Va. App. 360
    , 366, 
    416 S.E.2d 716
    , 719 (1992).
    Ms. Jennings testified that during the pendency of the
    divorce suit, she did not know Mr. Jennings' whereabouts and
    could not communicate with him.    In her efforts to ascertain his
    whereabouts, she contacted their accountant, Mr. Jennings' former
    landlord, a probation office, their two grown children, and
    Virginia Power, all to no avail.   Although the parties' son,
    William Jennings, Jr., sent mail to Mr. Jennings, he testified
    that at his father's direction, he refused to give his father's
    address to his mother.    Ms. Jennings received multiple telephone
    calls from creditors and former employees looking for Mr.
    Jennings.   They were unable to tell her his location.
    The commissioner in chancery reported that Ms. Jennings had
    exercised due diligence in attempting to locate Mr. Jennings.
    The trial court sustained that finding and held that Mr. Jennings
    had failed to prove by clear and convincing evidence that Ms.
    Jennings had perpetrated a fraud on the court.     On review, we
    must affirm the trial court's judgment unless it is plainly wrong
    or without evidence to support it.      See McLaughlin v. McLaughlin,
    - 3 -
    
    2 Va. App. 463
    , 466-67, 
    346 S.E.2d 535
    , 536 (1986).
    Mr. Jennings relies upon our decision in Khanna v. Khanna,
    
    18 Va. App. 356
    , 
    443 S.E.2d 924
    (1994).     However, the facts and
    circumstances in Khanna differ from those presented here.       In
    Khanna, the wife separated from her husband and took refuge in a
    shelter for victims of domestic violence.      
    Id. at 357, 443
    S.E.2d
    at 925.   The husband filed a criminal complaint against his wife,
    and initiated a suit to annul their marriage.      
    Id. He obtained constructive
    service of process on his wife in the annulment
    suit, averring that he had exercised due diligence in attempting
    to locate her, without effect.     
    Id. Although the wife
    was not
    permitted to disclose the location of the shelter, she continued
    during the suit to have contact with the husband.        
    Id. at 358, 443
    S.E.2d at 925-26.   Her attorney spoke with the husband, gave
    him her business card, and told him that he could communicate
    with his wife in writing through the attorney's office.        
    Id. at 358, 443
    S.E.2d at 926.   We vacated the annulment decree, holding
    that the husband had failed to exercise the diligence required
    for service of process by publication.      
    Id. at 359, 443
    S.E.2d at
    926.
    Mr. Jennings refused to tell his wife where he was residing
    and prevented her being able to find him.     After he left the
    marital home in January, 1990, he hid from Ms. Jennings and from
    his creditors.   He had no telephone service, no apartment lease,
    no utilities or "anything in [his] name . . . for the simple
    - 4 -
    reason that [he] was involved in [a] . . . criminal case."   He
    argues that Ms. Jennings did not tell him of the divorce suit
    when he telephoned her in February, 1991.    However, this call
    occurred after Ms. Jennings had executed and filed her affidavit
    of due diligence and after completion of the order of
    publication.   Mr. Jennings admitted that he instructed their
    children, his attorney, and his accountant not to tell Ms.
    Jennings his whereabouts.
    The record demonstrates that in preparation for the divorce
    suit Ms. Jennings attempted repeatedly and unsuccessfully to
    locate her husband, to no avail.   We cannot state that the trial
    court erred in ruling that Mr. Jennings failed to prove by clear
    and convincing evidence that by reporting these efforts under
    oath, Ms. Jennings perpetrated a fraud on the court.    Therefore,
    we affirm the judgment of the trial court.
    Affirmed.
    - 5 -
    

Document Info

Docket Number: 1143971

Citation Numbers: 26 Va. App. 530, 495 S.E.2d 544, 1998 Va. App. LEXIS 76

Judges: Baker, Willis, Overton

Filed Date: 2/10/1998

Precedential Status: Precedential

Modified Date: 11/15/2024