Peter J. Zdanis v. Susan (Zdanis) Deely

COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow, * Koontz and Senior Judge Duff
Argued at Alexandria, Virginia
PETER J. ZDANIS
v. Record Nos. 1078-94-4 and MEMORANDUM OPINION** BY
1689-94-4 JUDGE BERNARD G. BARROW
SUSAN (ZDANIS) DEELY MAY 9, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Daniel B. Clark for appellant.
Alan W. Brick (Kaufmann & Brick, on brief), for
appellee.
In this domestic relations appeal, we hold that the trial
court erred in sustaining the wife's demurrer to the husband's
amended bill of complaint.
A demurrer raises a question of "the legal sufficiency of a
pleading, and does not involve a consideration of disputed
facts." Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va.
206, 209, 375 S.E.2d 753, 755 (1989). We "admit[] the truth of
all material facts properly pleaded," including "those expressly
alleged, those which fairly can be viewed as impliedly alleged,
and those which may be fairly and justly inferred from the facts
alleged." Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717,
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the panel members joined in the opinion.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
717 (1988).
A court may "entertain at any time an independent action
. . . to set aside a judgment or decree for fraud upon the
court." Code § 8.01-428(D) 1 . A judgment obtained by
"extrinsic," as opposed to "intrinsic," fraud is subject to
collateral attack. Peet v. Peet, 16 Va. App. 323, 326-27, 429
S.E.2d 487, 490 (1993). Extrinsic fraud is "conduct which
prevents a fair submission of the controversy to the court."
Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983);
see O'Neill v. Cole, 194 Va. 50, 56-57, 72 S.E.2d 382, 386 (1952)
(finding claim of extrinsic fraud where father's false statements
to his minor daughter about her rights under her uncle's will
induced her to deed over property to him and "precluded her from
presenting her true case and rights to the court for
adjudication"; claim otherwise barred by laches).
In this case, the core of the husband's claim is that his
wife told him that the attorney she hired would represent both of
2
their interests. Further, he alleges that because of the
1
Formerly, subsection C; amended 1993.
2
The husband's complaint also alleges that when he inquired
about the provision continuing spousal support after remarriage,
the wife replied "that the attorney had said that it was required
to be in a separation agreement." This allegation cannot be the
basis for a claim of fraud because it is not, strictly, false.
Post-marriage spousal support is not required in a separation
agreement; however, if the parties wish support to continue after
remarriage, they are required expressly to provide for it in
their separation agreement. Miller v. Hawkins, 14 Va. App. 192,
197, 415 S.E.2d 861, 864 (1992). Thus, the wife's statement,
while open to several interpretations, was not a
misrepresentation.
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special relationship of trust between him and his wife, he relied
on this statement and did not obtain his own legal counsel. 3 We
disagree with the trial court's finding that the husband does not
present a claim of extrinsic fraud. The husband's allegation
that the wife's misrepresentation "precluded [him] from
presenting his true case and rights to the court," states a prima
facie claim of extrinsic fraud. O'Neill, 194 Va. at 57, 72
S.E.2d at 386.
Ultimately, whether the requirements of Code § 8.01-428(D) 4
can be proved at trial is a matter for the fact finder; however,
the pleading is sufficient to withstand a demurrer. Therefore,
we reverse the trial court's order and remand the matter for
further proceedings.
Reversed and remanded.
3
Whether such a "special relationship" of trust exists
between a divorcing husband and wife is a matter of fact for the
trial court to determine. Compare Webb v. Webb, 16 Va. App. 486,
492-93, 431 S.E.2d 55, 59-60 (1993) with Drewry v. Drewry, 8 Va.
App. 460, 470, 383 S.E.2d 12, 17 (1989).
4
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).
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