Carolyn Anne Cossu v. Patrice Cossu

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
CAROLYN ANNE COSSU
MEMORANDUM OPINION *
v. Record No. 2932-98-2 PER CURIAM
JUNE 15, 1999
PATRICE COSSU
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(W. Joseph Owen, III; Cowan & Owen, P.C., on
brief), for appellant.
(Charles E. Powers; Barnes & Batzli, P.C., on
brief), for appellee.
Carolyn Anne Cossu (wife) appeals the decision of the
circuit court denying her Petition to Reinstate this matter
following entry of the final decree of divorce. Wife argues on
appeal that (1) there was sufficient evidence that Patrice Cossu
(husband) fraudulently failed to disclose the value of his
assets to warrant setting aside the final decree of divorce; (2)
the trial court erred by failing to set aside the final decree
of divorce and to reconsider the issues of equitable
distribution and spousal support; and (3) a party in a divorce
action has a duty to accurately state his assets. Upon
reviewing the record and briefs of the parties, we conclude that
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
"Under familiar principles, we view the evidence and all
reasonable inferences in the light most favorable to the
prevailing party below . . . . 'The burden is on the party who
alleges reversible error to show by the record that reversal is
the remedy to which he is entitled.' We are not the
fact-finders and an appeal should not be resolved on the basis
of our supposition that one set of facts is more probable than
another." Lutes v. Alexander, 14 Va. App. 1075, 1077, 421
S.E.2d 857, 859 (1992) (citations omitted).
Wife contends that Code § 8.01-428(A) and (D) 1 authorized
the trial court to grant her petition to reinstate this matter.
We disagree. Code § 8.01-428 provides:
A. Default judgments and decrees pro
confesso; summary procedure. Upon motion of
the plaintiff or judgment debtor and after
reasonable notice to the opposite party, his
attorney of record or other agent, the court
may set aside a judgment by default or a
decree pro confesso upon the following
grounds: (i) fraud on the court, (ii) a void
judgment, (iii) on proof of an accord and
satisfaction. Such motion on the ground of
fraud on the court shall be made within two
years from the date of the judgment or
decree.
B. Clerical mistakes. Clerical mistakes in
all judgments or other parts of the record
1
Following the 1993 amendment, former Code § 8.01-428(C) now
appears as subsection (D). Based upon the argument made in this
appeal, we assume that wife relies upon subsection (D).
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and errors therein arising from oversight or
from an inadvertent omission may be
corrected by the court at any time on its
own initiative or upon the motion of any
party and after such notice, as the court
may order. During the pendency of an
appeal, such mistakes may be corrected
before the appeal is docketed in the
appellate court, and thereafter while the
appeal is pending such mistakes may be
corrected with leave of the appellate court.
C. Failure to notify party or counsel of
final order. If counsel, or a party not
represented by counsel, who is not in
default in a circuit court is not notified
by any means of the entry of a final order
and the circuit court is satisfied that such
lack of notice (i) did not result from a
failure to exercise due diligence on the
part of that party and (ii) denied that
party an opportunity to file an appeal
therefrom, the circuit court may, within
sixty days of the entry of such order, grant
the party leave to appeal. The computation
of time for noting and perfecting an appeal
shall run from the entry of such order, and
such order shall have no other effect.
D. Other judgments or proceedings. This
section does not limit the power of the
court to entertain at any time an
independent action to relieve a party from
any judgment or proceeding, or to grant
relief to a defendant not served with
process as provided in § 8.01-322, or to set
aside a judgment or decree for fraud upon
the court.
Wife concedes that subsection (B) is not applicable to this
case.
Wife was served with the Bill of Complaint and elected to
proceed without representation. She attended the depositions
and the hearing to present the final decree. The final decree
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was neither a default judgment nor a decree pro confesso, and
wife did not lack notice of the entry of the final decree.
Therefore, by their express terms, neither Code § 8.01-428(A)
nor (C) apply.
Wife also relies on subsection (D), the inherent authority
of the trial court to relieve a party from a judgment through an
independent action.
The elements of this independent 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). "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." Jennings v.
Jennings, 26 Va. App. 530, 533, 495 S.E.2d 544, 545-46 (1998)
(citations omitted).
Wife alleged that husband fraudulently failed to disclose
his assets. "'The charge of fraud is one easily made, and the
burden is upon the party alleging it to establish its existence,
not by doubtful and inconclusive evidence, but clearly and
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conclusively. Fraud cannot be presumed.'" Aviles v. Aviles, 14
Va. App. 360, 366, 416 S.E.2d 716, 719 (1992) (citation
omitted). The party alleging fraud "has the burden of proving
'(1) a false representation, (2) of a material fact, (3) 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)).
Husband did not disclose the existence of any pension plans
or retirement benefits to which he was entitled through his
employment with IBM for over twenty years. Husband did not list
any pension or retirement benefits in his exhibit labeled
"Property Jointly Owned." His deposition included the following
exchange:
[Counsel]: Did you own any other property
at the time of your separation
which we haven't already
disclosed to the Court?
[Husband]: No.
No pension benefits were included in the list of marital
property set out in the final decree.
Nonetheless, we agree with the trial court's ruling that
wife failed to establish fraud by husband. Nothing in the
record proved that husband intentionally and knowingly failed to
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disclose the existence of the pension or that he acted with the
intent to mislead. We cannot presume such an intention in the
absence of any evidence.
Wife had notice of the proceedings and was present at the
depositions and the final hearing. She elected to represent
herself. She had the opportunity to seek spousal support and to
explore the value of marital assets. While "Virginia's statute
'mandates' that trial courts determine the ownership and value
of all real and personal property of the parties . . . the
litigants have the burden to present evidence sufficient for the
court to discharge its duty." Bowers v. Bowers, 4 Va. App. 610,
617, 359 S.E.2d 546, 550 (1987). The deposition transcripts
demonstrate that husband's counsel objected to wife's
questioning on the grounds she exceeded the scope of the direct
examination, but that he explained to wife that she was entitled
to notice new depositions and call witnesses on her own.
Therefore, the record does not support wife's contention that
she was prevented from introducing evidence.
Neither Code § 20-107.3 nor § 20-107.1 authorized the trial
court to revisit the issues of equitable distribution or spousal
support after entry of the final decree of divorce. A trial
court's authority to modify a previously entered equitable
distribution decree is limited. See Code § 20-107.3(K). A
trial court is not authorized to modify spousal support in the
absence of a reservation of that right, see Dixon v. Pugh, 244
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Va. 539, 543, 423 S.E.2d 169, 170-71 (1992), and is not
obligated to reserve support sua sponte, see Thomasson v.
Thomasson, 225 Va. 394, 397 n.1, 302 S.E.2d 63, 65 n.1 (1983).
Therefore, we find no error in the trial court's denial of
wife's petition to reinstate.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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