Laura T Price v. Leon S Price ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
LAURA T. PRICE
MEMORANDUM OPINION * BY
v. Record No. 3266-01-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 22, 2002
LEON S. PRICE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
John M. Holloway, III (Kristina E. Beard;
Angela L. Jenkins; Pamela Russell; Hunton &
Williams, on brief), for appellant.
No brief or argument for appellee.
Laura T. Price (wife) appeals from an order denying her
request to have the final decree of divorce dissolving her
marriage to Leon S. Price (husband) set aside. On appeal, wife
contends the trial court erred (1) in rejecting her claim that the
written waiver of notice and service of process she signed in the
divorce action was procured by fraud or duress, (2) in upholding
the divorce decree despite finding the divorce had been granted to
husband on the basis of his perjured testimony, and (3) in
refusing to permit wife to amend her pleadings to request
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
attorney's fees. 1 In addition, wife seeks an award of appellate
attorney's fees. Finding no error, we affirm the judgment of the
trial court and deny wife's request for appellate attorney's fees.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal. "We view the evidence and all
reasonable inferences fairly deducible therefrom in the light most
favorable to husband, the party prevailing below." Walson v.
Walson, 37 Va. App. 208, 211, 556 S.E.2d 53, 54 (2001).
I.
Wife first contends the trial court erred in finding, despite
her uncontradicted, unimpeached testimony to the contrary, that
the written waiver of notice and service of process she signed in
the divorce action was not procured by fraud or duress. We
disagree.
The evidence established that, on September 20, 2000, a week
after husband filed his bill of complaint for divorce, wife
signed, under oath, a one-page waiver that was in the form of a
pleading, with the caption of the divorce action at the top.
According to the terms of the notarized waiver, wife waived
1
For purposes of this appeal, we have, in identifying the
issues to be considered, consolidated some of wife's
interrelated questions presented.
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"further notice of entry of the taking of depositions, and the
entry of decrees [in the case], and of the service of process of
the Bill of Complaint," as well as "the time limits imposed for
the taking of depositions to be used as evidence in the [case],
and the twenty-one day time period allowed for the filing of an
answer and cross-bill."
At the evidentiary hearing on wife's request to have the
decree of divorce set aside, wife testified regarding several
instances during the latter part of the marriage in which she had
been a victim of husband's violence and abuse. She obtained, she
testified, two permanent protective orders against husband and two
warrants charging him with assault and battery.
Wife also testified she and husband had been in court on
several occasions regarding the issues of custody, visitation, and
child and spousal support. According to wife, she was represented
by an attorney in the visitation proceeding.
Wife further testified that, when husband brought the waiver
for her to sign, he told her "it was a paper he needed her to sign
so that he could talk to an attorney about a divorce." She
testified that, although she was suspicious of his actions, she
did not know or understand what the document was. She did not,
she testified, "recognize the document as a pleading in an action
filed with the court." She refused to sign the waiver at first,
she testified, but then husband "started harassing and threatening
her," showing up unexpectedly at her house and demanding she sign
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the waiver. Finally, she testified, after he came to her house,
destroyed things in the kitchen, and damaged the house, she
"became so frightened that she gave him the waiver on September
20, 2000." Husband, although present, did not testify at the
hearing.
"Where, as here, a court hears evidence ore tenus, its
findings are entitled to the weight of a jury verdict, and they
will not be disturbed on appeal unless plainly wrong or without
evidence to support them." Gray v. Gray, 228 Va. 696, 699, 324
S.E.2d 677, 679 (1985). Furthermore, it is well settled that "the
trier of fact ascertains a witness' credibility, determines the
weight to be given to their testimony, and has the discretion to
accept or reject any of the witness' testimony." Anderson v.
Anderson, 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999). "This
Court will not substitute its judgment for the trial court's
determination . . . ." Parish v. Spaulding, 26 Va. App. 566, 575,
496 S.E.2d 91, 95 (1998).
However, a trial court's conclusion based on
evidence that is "not in material conflict"
does not have this binding effect on appeal.
Durrette v. Durrette, 223 Va. 328, 332, 288
S.E.2d 432, 434 (1982); Clark v. Clark, 209
Va. 390, 395, 164 S.E.2d 685, 689 (1968).
The trier of fact . . . "may not arbitrarily
disregard uncontradicted evidence of
unimpeached witnesses which is not inherently
incredible and not inconsistent with facts in
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the record." Cheatham v. Gregory, 227 Va. 1,
4, 313 S.E.2d 135, 138 (1992).
Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985).
Here, the trial court rejected as incredible wife's testimony
that she did not understand, in signing the waiver, what she was
signing and that she signed the waiver under duress. In making
that determination, the trial court stated as follows:
With regard to Ms. Price not
understanding what she was signing, the court
simply does not believe her. The evidence
shows that between July 1999 and March 2000,
Ms. Price had sworn out at least two criminal
warrants against Mr. Price, had been to
juvenile court in Mecklenburg County to
obtain child custody and support, and had
returned to juvenile court with a lawyer to
have a visitation order entered. She was
well acquainted with the court system and
with legal pleadings. She knew what she was
signing.
The court also does not believe that
Ms. Price signed the waiver as a result of
threats, force, intimidation, or duress.
When Mr. Price assaulted her, she filed
criminal charges. When she did not want to
be harassed by Mr. Price, she had a
protective order entered against him. When
she felt she was entitled to child support,
she initiated appropriate proceedings in
juvenile court. She hired a lawyer to
represent her on the question of Mr. Price's
visitation with the children. She was not at
all intimidated or threatened by Mr. Price.
She did not sign the waiver against her will.
In other words, the trial court concluded that wife's
testimony showing (1) her obvious willingness to utilize the legal
system to protect her rights, (2) her considerable involvement
with the legal system, and (3) her assertive responses to
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husband's violence and abuse in the past belied her testimony that
she did not know what she was doing in signing the waiver and that
she signed the waiver because of husband's abuse. We agree with
the trial court's assessment that wife's testimony was
inconsistent. Accordingly, the trial court was not obliged, under
these circumstances, to accept wife's uncontradicted testimony.
In addition, we cannot say, based on our review of the
record, that the trial court's findings were plainly wrong or
without credible evidence to support them. Accordingly, we affirm
the trial court's determination that the written waiver of notice
and service of process filed in the divorce action was not
procured by fraud or duress.
II.
Wife next contends the trial court erred in refusing to set
aside the final decree of divorce despite finding husband's
testimony that the parties had lived separate and apart for more
than a year was perjured. Husband's perjured testimony, wife
argues, constituted extrinsic fraud, thus, rendering the divorce
decree void. We disagree.
Following the hearing on wife's request to have the divorce
decree set aside, the trial court found that, in testifying
husband and wife had lived separate and apart since August 1999,
"Mr. Price, and possibly his divorce witness, committed perjury in
this court." The trial court ruled, however, that it was unable
to disturb the final decree of divorce on that basis because
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perjured testimony constitutes intrinsic, rather than extrinsic,
fraud and, once a judgment has become final, it may no longer be
set aside for intrinsic fraud.
We review the trial court's legal conclusion de novo. See
Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102
(2001). It is well established that "mere perjury or false
swearing alone is not ground for equitable relief, since it is
regarded as an intrinsic fraud." O'Neill v. Cole, 194 Va. 50, 56,
72 S.E.2d 382, 385 (1952). "Fraud warranting . . . equitable
relief . . . must be extrinsic or collateral to the issues
determined in the original suit . . . ." Rowe v. Big Sandy Coal
Corp., 197 Va. 136, 143, 87 S.E.2d 763, 768 (1955). Indeed, as
the Supreme Court observed in Jones v. Willard, 224 Va. 602, 607,
299 S.E.2d 504, 508 (1983):
The judgment of a court, procured by
intrinsic fraud, i.e., by perjury, forged
documents, or other incidents of trial
related to issues material to the judgment,
is voidable by direct attack at any time
before the judgment becomes final; the
judgment of a court, procured by extrinsic
fraud, i.e., by conduct which prevents a fair
submission of the controversy to the court,
is void and subject to attack, direct or
collateral, at any time.
"Extrinsic fraud is fraud which occurs outside the judicial
process . . . ." F.E. v. G.F.M., 35 Va. App. 648, 659, 547 S.E.2d
531, 536 (2001).
Applying these principles to the instant case, we hold that
the final decree of divorce, the entry of which was based upon
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husband's perjured testimony regarding the parties' separation,
was procured by intrinsic fraud. Accordingly, we affirm the trial
court's decision not to set the decree aside.
III.
Following wife's direct testimony at the evidentiary hearing,
her attorney requested leave to amend the bill of complaint to
request attorney's fees. The trial court noted there were no
pleadings in the record requesting such an amendment. Wife's
attorney stated that she had brought the necessary written motion
and order with her. The trial court denied the motion.
Whether to grant an amendment to a pleading is a decision
resting within the sound discretion of the trial court. See
Roberts v. Roberts, 223 Va. 736, 742, 292 S.E.2d 370, 373 (1982).
A refusal to grant such an amendment will not be reversed on
appeal absent an abuse of that discretion. See id.
Here, wife waited until she had concluded her direct
testimony before advising the court and husband of her desire to
seek attorney's fees. Such notice, we conclude, was insufficient
to permit husband effective cross-examination on the issue of
wife's attorney's fees or to prepare and present evidence in
opposition thereto. Accordingly, we hold the trial court did not
abuse its discretion in denying wife's motion.
Wife's appeal being without merit, we deny her request for
appellate attorney's fees. See O'Loughlin v. O'Loughlin, 23
Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
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For these reasons, we affirm the judgment of the trial court.
Affirmed.
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