Opinion
Record No. 0608-94-3
Decided: March 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE, Diane McQ. Strickland, Judge
John Gregory, Jr. for appellant.
Alice G. Burlinson, Special Counsel, Division of Child Support Enforcement (James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General; Betsy S. Elliott, Senior Special Counsel, Division of Child Support Enforcement; on brief), for appellee DSS.
No brief or argument for appellees Connie Jones Randall and Veronica Diane Jones.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Donald Leroy Dunnaville, Sr. (father) appeals the decision of the circuit court denying his request to set aside the provisions of an order that required him to pay child support for two children of Connie Jones Randall (mother). He contends that the trial court erred in finding the evidence insufficient to prove that the mother fraudulently procured the support order by wrongfully swearing that he is the father of the children. Because the trial court did not err in finding the evidence insufficient to prove fraud, we affirm the trial court's decision.
Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.
Martin v. Pittsylvania Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
In order for the father to have prevailed in the trial court, he was required to prove "(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." Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723 (1991) (citation omitted). "Fraud cannot be presumed," and it must be established "not by doubtful and inconclusive evidence, but clearly and conclusively." Aviles v. Aviles, 14 Va. App. 360, 366, 416 S.E.2d 716, 719 (1992) (citation omitted).
The evidence fails to prove that Connie Randall knowingly misrepresented that Dunnaville was the father of either child. Although DNA test results conclusively showed that Donald Leroy Dunnaville, Sr., is not the biological father of either child, he was living with Connie Jones Randall during the time that both children were conceived. He lived with her in 1971, before they were married, when the first child was conceived, and in 1974, after they were married, when the second child was conceived. Because Connie Randall obviously was having sexual relations with a man or men other than Donald Dunnaville, she had reason to know that someone other than Dunnaville may have been the father of her children. However, the evidence does not show that she knew that he was not the children's biological father and that she fraudulently misled him. Having married Dunnaville after giving birth to a child out of wedlock and having had a second child while married to Dunnaville, she well may have believed that he was probably the children's biological father. Thus, the trial court did not err in ruling that the father did not prove by clear and convincing evidence that the mother knowingly or intentionally misled him.
Moreover, as the trial court ruled, the father's allegations that she knowingly misrepresented to him his paternity raised a claim of intrinsic fraud having been perpetrated upon Dunnaville, rather than a claim of extrinsic fraud having been perpetrated upon the court. As such, even if the evidence were sufficient to prove fraud, Dunnaville's challenge in this proceeding would be barred. Dunnaville has raised collaterally the defense of fraud in a show cause proceeding in an effort to avoid being adjudged in contempt for failing to pay child support. "A collateral attack on a judgment procured by intrinsic fraud has been deemed not warranted because 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." Peet v. Peet, 16 Va. App. 323, 327, 429 S.E.2d 487, 490 (1992).
Accordingly, the circuit court's decisions not to abate the contempt proceeding or to vacate the support order based upon intrinsic fraud are affirmed.
Affirmed.