WILL v. WILL, 0119-93-4, Unpublished (Va.App. 3-1-1994)

CHIEF JUDGE NORMAN K. MOON.

Richard B. Will appeals the trial court's decision refusing to overturn his five-year-old a mensa et thoro divorce decree upon the ground it was procured by extrinsic fraud by his wife. We hold that the trial court correctly found appellant's new evidence amounted at most to evidence of intrinsic fraud which could have been presented to the court in the original proceeding. We also uphold the trial court's decision regarding spousal support, child support, visitation, and equitable distribution.

During the 1988 ore tenus hearing to establish the grounds of divorce, appellant's former wife testified about specific instances of physical and psychological abuse that occurred before she left appellant. Counsel for appellant cross-examined the wife concerning her failure to relate those instances to two psychologists who had examined her on appellant's behalf and who had testified at the 1988 hearing. The trial court awarded wife a divorce a mensa et thoro on grounds of cruelty and constructive desertion and awarded appellant sole permanent custody of the children. In an unpublished opinion, this Court, holding that the record contained sufficient credible evidence to support the wife's allegations of cruelty and constructive desertion, affirmed the decision.

In 1992, after this Court's affirmance, appellant filed a motion to set aside the trial court's 1988 divorce decree based upon what he maintained was a new argument and evidence of "extrinsic fraud." He provided the trial court with affidavits of the two psychologists who testified at the 1988 divorce hearing. Each stated in his affidavit that when he testified in 1988, because of limitations the trial judge placed upon the questioning, he was not permitted to express fully his opinion that the wife had not been psychologically or physically abused by appellant. Because the trial court found that this proffer did not constitute new evidence, but was an attempt to amplify evidence presented or available at the 1988 divorce hearing, he denied appellant's motion to vacate the 1988 decree.

"Although a judgment obtained by `extrinsic fraud' is void and, therefore, subject to direct or collateral attack, a judgment obtained by `intrinsic fraud' is merely voidable and can be challenged only by direct appeal or by a direct attack in an independent proceeding." Peet v. Peet, ___ Va. App. ___, 429 S.E.2d 487, 490 (1993). Intrinsic fraud includes perjury 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. See Jones v. Willard, 224 Va. 602, 607, 229 S.E.2d 504, 508 (1983).

Here, appellant challenges the a mensa et thoro divorce decree on the grounds of cruelty and constructive desertion, arguing that the wife testified falsely about his abusiveness toward her. To the extent that appellant's claim is that the wife committed perjury, the claim constitutes an allegation of intrinsic, not extrinsic, fraud. The trial judge correctly held that this issue had been previously litigated and decided in the 1988 divorce proceeding. This Court later affirmed that decision in an unpublished opinion. Appellant should have proffered to the trial court in the 1988 hearing the testimony he now claims the court prevented the witnesses from presenting. He also should have included in the appeal any error of the trial court in limiting the witnesses' interrogation.

Appellant also questions the trial court's child support, spousal support and equitable distribution awards and the terms of the wife's visitation rights. We find that these questions are without merit.

"On review, we consider the evidence in the light most favorable to the party prevailing in the trial court. Where the trial court's decision is based upon an ore tenus hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without evidence in the record to support it." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). Because the trial judge is in a position to see and hear the witnesses, his or her findings are entitled to an appropriate degree of respect. Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986).

Appellant introduced evidence to support his argument that he was involuntarily unemployed and that the child support guidelines should apply. The trial court disbelieved his evidence, finding appellant had been voluntarily unemployed for approximately three and one-half years. For that reason, the trial court found that to apply the child support guidelines would be inequitable, unjust and inappropriate.

Regarding spousal support, the trial judge stated that he had considered the factors in Code § 20-107.1 and discussed the reasons for granting the wife alimony.

The record fails to show an abuse of discretion concerning the visitation allowed the wife or the requirement that appellant pay one-half of the transportation cost.

"In reviewing an equitable distribution award on appeal, . . . we must rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). Once the trial judge determined that the assets were marital, the trial judge applied the factors in Code § 20-107.3 in conjunction with the evidence he had heard.

All of the trial court's findings that are the subject of the issues on appeal are supported by the record and are not plainly wrong.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.