Rhonda G. Campbell v. Jonathan S. Campbell ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
RHONDA G. CAMPBELL
MEMORANDUM OPINION * BY
v. Record No. 0172-97-2 JUDGE LARRY G. ELDER
JANUARY 26, 1999
JONATHAN S. CAMPBELL
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Keith B. Marcus (Phillips, Webb &
Wallerstein, on brief), for appellant.
Mary Kathryn Hart (Rohde, Clarke & Prince, on
brief), for appellee.
Rhonda G. Campbell (wife) appeals from an order terminating
the obligation of Jonathan S. Campbell (husband) to pay child
support for Gregory A. Campbell (child), following a
determination through genetic testing that husband is not the
father of the child. On appeal, wife contends that the court
erroneously terminated the award because (1) husband failed to
prove wife perpetrated a fraud on the court in obtaining a
judicial declaration of parentage and (2) husband is collaterally
estopped from challenging the final decree of divorce in which
the court previously found that Gregory was born of the parties'
1
marriage. For the reasons that follow, we affirm the ruling of
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1
Husband earlier moved to dismiss the appeal based on wife's
alleged failure timely to file an appeal bond. Wife subsequently
provided a copy of the bond, and at oral argument, husband
conceded that the bond had been timely filed.
the trial court.
I.
FACTS
The parties were married on June 24, 1985. The child was
born on March 19, 1991. On July 30, 1992, wife filed a bill of
complaint for divorce in which she alleged "[t]here was one
child[, Gregory,] born of the . . . marriage," and she requested
custody of the "child of the parties." Although husband was
personally served with the bill of complaint, he did not appear
or file a response. Wife filed depositions of her sister and
herself. Both wife and her sister testified on deposition that
Gregory was a "child[] born of [her] marriage" to husband. On
September 11, 1992, the circuit court entered a final decree of
divorce, in which it found "that there was one child born of [the
parties'] marriage namely Gregory Alan William Campbell, born
March 19, 1991." The court awarded wife custody of the child and
transferred "all future matters pertaining to custody, visitation
and support of [the] child" to the juvenile and domestic
relations district court (JD&R court).
Subsequently, wife attempted to collect child support from
husband through the Division of Child Support Enforcement (DCSE).
On January 22, 1996, DCSE entered an administrative order
requiring husband to pay support for the child. Husband
challenged the support order in the JD&R court, claiming he was
not the child's father. Although genetic testing ordered by the
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JD&R court confirmed that husband was not child's father, the
JD&R court held that it lacked jurisdiction to overturn the
circuit court's prior paternity determination contained in the
final decree of divorce.
Husband appealed the JD&R court's ruling on the support
order. He simultaneously petitioned the circuit court to set
aside the final decree of divorce and paternity determination
therein based on wife's alleged fraud and to "reinstate
[husband's] divorce action." In the circuit court, husband
testified that the parties first separated in 1990 and that they
did not live together or have sexual relations during the period
in which the child, born March 19, 1991, was conceived. Husband
testified that a week after he and wife reconciled in August of
1990, wife told him she was pregnant by a man named "Joe" and
showed him a positive home pregnancy test. He and wife separated
again, for the final time, in September or October of 1990.
Husband admitted that he sent the child an Easter card--addressed
"To My Little Boy" and signed "Love, Your Dad"--but contended
that he did so because he felt sorry for the child and that he
knew he was not the father. Wife did not contact him when the
child was born or when he sent the card, and he had no
involvement in the child's upbringing beyond sending the card.
He was aware that the child had his last name.
Husband testified "that he became aware of the divorce when
he was personally served papers at the Sheriff's office" but that
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"he did not read the papers because [wife] assured him she wanted
nothing from him." He testified that he was not represented by
counsel in the divorce proceeding and that "it did not occur to
him that a child that [wife] had admitted was not his would be
mentioned in the divorce papers."
Wife moved to strike husband's case on the basis "that he
had failed to prove fraud; that he acknowledged that he was the
father of Gregory; and that it was contrary to the well
established law of Virginia." The court denied the motion. Wife
presented no evidence and renewed her motion, which the court
again denied.
Husband argued that wife had perpetrated a fraud on the
court and DCSE by "attesting that Gregory was a child of the
marriage," which fraud allowed the court to revisit the issue of
paternity; that, based on wife's fraud, husband's failure to
appear in the divorce proceeding despite notice should not
prevent him from challenging the decree; and that the ends of
justice would be served by ending wife's falsehoods. He sought
termination or reduction of his child support obligation to both
wife and DCSE.
By letter of November 13, 1996, and order entered December
23, 1996, the circuit court found the following:
[I]t is undisputed that [husband] is not the
father of [the child]; that [husband] has not
had any direct contact with the [mother/wife]
. . . or [the child]; that [wife] has not
been honest with this Court or [DCSE]; and
that [husband] had notice of the divorce
proceedings but chose not to do anything
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about it . . . .
Based on those findings, it terminated the order of support to
wife but required husband to pay the support arrearage owed to
DCSE. Counsel for wife endorsed the order as "seen and objected
to as contrary to law and evidence" and noted this appeal.
II.
ANALYSIS
A.
SUFFICIENCY OF EVIDENCE TO PROVE FRAUD
"On appeal, we view the evidence and all reasonable
inferences therefrom in the light most favorable to the
prevailing party below." Reece v. Reece, 22 Va. App. 368, 372,
470 S.E.2d 148, 151 (1996). "It is well established that the
credibility of witnesses and the weight accorded to their
testimony are matters solely within the purview of the trial
court, and its findings will be reversed on appeal only if
'plainly wrong or without evidence to support them.'" Brooks v.
Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 (1994) (quoting
Wyatt v. Department of Soc. Servs., 11 Va. App. 225, 230, 397
S.E.2d 412, 415 (1990)).
Wife contends husband's evidence failed to prove she
committed a fraud on the court. Under the standards set out
above, we find no error.
To establish fraud, the party alleging it "has the burden of
proving '(1) a false representation, (2) of a material fact, (3)
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made intentionally and knowingly, (4) with intent to mislead, (5)
reliance by the party misled, and (6) resulting damage to the
party misled.' The fraud must be proved by clear and convincing
evidence." Batrouny v. Batrouny, 13 Va. App. 441, 443, 412
S.E.2d 721, 723 (1991) (quoting Winn v. Aleda Constr. Co., 227
Va. 304, 308, 315 S.E.2d 193, 195 (1984)); see also Code
§ 8.01-428(D) (noting that cited code section, which permits a
court to set aside default judgments and correct clerical errors
under certain conditions, "does not limit the power of the court
to entertain at any time an independent action . . . to set aside
a judgment or decree for fraud upon the court").
Fraud falls into one of two categories--intrinsic or
extrinsic. Intrinsic fraud "includes perjury, use of forged
documents, or other means of obscuring facts presented before the
court and whose truth or falsity as to the issues being litigated
are passed upon by the trier of fact." Peet v. Peet, 16 Va. App.
323, 326-27, 429 S.E.2d 487, 490 (1993). Intrinsic fraud renders
a judgment voidable only; it may be assailed only on direct
appeal and not by collateral attack. See id. In cases involving
only intrinsic fraud, "the parties have the opportunity at trial
through cross-examination and impeachment to ferret out and
expose false information presented to the trier of fact." Id. at
327, 429 S.E.2d at 490. "'The reason of this rule is[] that
there must be an end of litigation . . . . Endless litigation,
in which nothing was ever finally determined, would be worse than
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occasional miscarriages of justice . . . .'" McClung v. Folks,
126 Va. 259, 269-70, 101 S.E. 345, 348 (1919) (quoting Pico v.
Cohn, 25 P. 970, 971, aff'd on reh'g en banc, 27 P. 537 (Cal.
1891)).
Extrinsic fraud occurs outside the judicial process and
"consists of 'conduct which prevents a fair submission of the
controversy to the court.'" Peet, 16 Va. App. at 327, 429 S.E.2d
at 490 (quoting Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d
504, 508 (1983)). It includes "'[k]eeping the unsuccessful party
away from the court by a false promise of a compromise[] or
purposely keeping him in ignorance of the suit . . . . In all
such instances the unsuccessful party is really prevented, by the
fraudulent contrivance of his adversary, from having a trial
. . . .'" McClung, 126 Va. at 270, 101 S.E. at 348 (quoting
Pico, 25 P. at 971); see O'Neill v. Cole, 194 Va. 50, 57, 72
S.E.2d 382, 386 (1952) (holding sufficient to state a claim of
extrinsic fraud allegations in complaint that father made false
statements to daughter to persuade her not to contest judicial
transfer of her property to him). Under these circumstances,
"[a] collateral challenge to a judgment . . . is allowed because
such fraud perverts the judicial processes and prevents the court
or non-defrauding party from discovering the fraud through the
regular adversarial process." Peet, 16 Va. App. at 327, 429
S.E.2d at 490.
Viewing the evidence in this case in the light most
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favorable to husband, wife's fraud was both intrinsic and
extrinsic. Husband testified that, although he was served with
the divorce papers, he did not read them because "[wife] assured
him she wanted nothing from him" in the divorce. In reality,
wife sought and obtained the fraudulent determination of
parentage. Husband's testimony about wife's actions outside the
proceeding supported a finding of extrinsic fraud; it proved that
wife intentionally and knowingly made a false representation of
material fact with intent to mislead husband and that husband
relied on that representation to his detriment. See O'Neill, 194
Va. at 57, 72 S.E.2d at 386; McClung, 126 Va. at 270, 101 S.E. at
348. This evidence of extrinsic fraud provided the court with
jurisdiction to entertain husband's collateral attack on the
judgment and to consider the allegations of intrinsic fraud, as
well.
The record, viewed in the light most favorable to husband,
also contains ample evidence of wife's intrinsic fraud. Wife
represented in her 1992 bill of complaint for divorce that the
child was born of the parties' marriage, and she and her sister
gave deposition testimony to that effect. However, genetic
testing performed in 1996 confirmed that husband, in fact, was
not the child's father. Furthermore, in the circuit court
proceedings, husband testified that he and wife were separated
and did not have sexual relations during the time the child was
conceived. He also testified that wife told him when they
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reconciled briefly in 1990 that she was pregnant with another
man's child. Finally, wife did not testify and provided no
evidence disputing husband's testimony regarding her knowledge of
the child's paternity.
Based on this evidence, the trial court was entitled to
conclude that husband's testimony was credible and that wife, in
the 1992 divorce proceeding, knowingly misrepresented the child's
paternity to the court and that she did so with an intent to
mislead the court. See Batrouny, 13 Va. App. at 443-44, 412
S.E.2d at 723 (holding wife's "admission that she has always
known the child was not born of the marriage, when viewed in
light of her assertion in the pleading to the contrary, is
convincing evidence of her intent to defraud"). The evidence
also shows that the court relied on wife's representation that
husband was the child's father when, in the final decree, it
ruled that the child was born of the parties' marriage and
awarded custody to wife. See id. at 443, 412 S.E.2d at 723.
On appeal, wife cites the "fundamental principle of equity
jurisprudence that a litigant who files an independent action in
equity to set aside a judgment must be free of fault or neglect."
See Charles v. Precision Tune, Inc., 243 Va. 313, 318, 414
S.E.2d 831, 833 (1992). She contends that husband was not free
of fault because he was personally served with the bill of
complaint for divorce but failed to read it, file an answer or
make an appearance. He knew at that time that the child was not
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his, and had he participated in the proceedings, she contends, he
could have prevented the court from making the finding of
paternity he now contests.
Although we acknowledge that wife's quotation accurately
reflects the law, we disagree that this equitable principle
applies in this appeal. As husband contends, the record gives no
indication that wife presented this argument to the trial court.
See Anderson v. Commonwealth, 251 Va. 437, 439, 470 S.E.2d 862,
863 (1996) (holding that appellant bore the burden of furnishing
a record sufficient to permit appellate review). The statement
of facts indicates only that wife moved to strike on the ground
"that [husband] failed to prove fraud; that he acknowledged that
he was the father of Gregory; and that it was contrary to the
2
well established law of Virginia." None of these objections
specifically preserves the issue wife now raises. Therefore,
under Rule 5A:18, the record is insufficient to preserve this
issue for appeal.
B.
COLLATERAL ESTOPPEL
Wife also contends that husband is collaterally estopped by
the paternity determination in the final decree from contesting
the issue of paternity in these proceedings. Again, we disagree,
for "'[p]rinciples of collateral estoppel may not be invoked to
2
In making its ruling, the trial court did note that husband
"had notice of the divorce proceedings but chose not to do
anything about it."
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sustain fraud.'" Batrouny, 13 Va. App. at 444, 412 S.E.2d at 723
(quoting Slagle v. Slagle, 11 Va. App. 341, 348, 398 S.E.2d 346,
350 (1990)). As we held in Batrouny, "[proof of] fraud
. . . [prevents] the husband's action [from being] defeated by
the wife's claim that he is collaterally estopped from
challenging [the] issue [of paternity] which was tacitly
determined in the prior divorce action." Id.
For these reasons, we affirm the trial court's termination
of the order that husband pay child support to wife.
Affirmed.
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