Opinion
Record No. 0878-93-4
March 8, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. HOWE BROWN, JR., JUDGE.
(James D. Healy, on briefs), for appellant.
(David R. Clarke; Blankingship Keith, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Lori Ann Miller (wife) appeals the decision of the trial court denying her motion to set aside a property settlement agreement with Jack B. Miller (husband) on the basis of fraud. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Wife challenges numerous factual determinations by the trial court. Those challenges fall within the scope of the single issue wife raises on appeal: whether the trial court correctly ruled that wife failed to prove by clear and convincing evidence that the property settlement agreement was procured by fraud.
"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." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted).
In order to prevail below, wife was required to demonstrate "(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). "Fraud cannot be presumed," and 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).
Wife asserts that she never intended to waive spousal support. However, the record establishes that there was an agreement between the parties to seek a no-fault divorce and forego spousal support. While the details of the property settlement agreement were subject to further negotiation, a request for spousal support was no longer an outstanding issue between the parties.
The trial judge found that wife did not rely on husband's representation concerning his 1991 income when she signed the property settlement agreement. The trial judge's March 9, 1993 letter opinion recites the substantial, credible and competent evidence which supports that finding. Without demonstrating her reliance on husband's representation, wife cannot establish fraud.
Accordingly, the decision of the trial judge that wife failed to carry her burden to demonstrate fraud by clear and convincing evidence is affirmed.
Affirmed.