Opinion
Record No. 1637-92-4
April 27, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY QUINLAN H. HANCOCK, JUDGE.
(Jeff Krause; Peter M. Fitzner, on briefs), for appellant.
(Mark B. Sandground; Brian D. West; Irve Charles Le Moyne, Jr.; Sandground, Barondess West, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Gerald Francis Spillman appeals the ruling of the trial court denying his "Motion to Set Aside Portion of Final Decree Entered Herein Pursuant to 8.01 Va. Code 428(A)." In the trial court, he sought to set aside that portion of the final divorce decree entered on June 7, 1990, which found him liable for $11,025 in spousal support arrearages. He contends that the portion of the decree that awarded a judgment against him for arrearages was obtained by actual or constructive fraud, and that he was denied due process.
Gerald Francis Spillman (husband) and Mary Virginia Kemp (wife) were married in 1980. In March 1989, when both were represented by counsel, they executed a Property Settlement Agreement that was affirmed, ratified and incorporated into the final divorce decree. The Agreement provided for interim support for wife pending sale of the marital home and, thereafter, support for seven years. Wife filed a Bill of Complaint for Divorce in September 1989 on no-fault grounds, Code § 20-91(9)(a), and requesting incorporation of the Agreement into the divorce decree, restoration of her maiden name, and "such other and further relief as the Court may deem appropriate under the circumstances." In December 1989, husband executed a Waiver of Notice pursuant to Code § 20-99.1:1, waiving the right to answer the complaint and to receive notice or other process, including the final decree. At the same time, wife executed a notarized statement, at husband's request, that she was filing for divorce and that she would not amend the complaint.
Because wife had filed the initial Bill of Complaint prematurely, she filed an Amended Bill that was, in material respects, identical to the first. After a telephone conversation with husband, wife's counsel sent husband a copy of the Amended Bill and another Waiver of Notice that referred to the Amended Bill. Husband, at this time, was unrepresented by counsel. Husband executed the second waiver. The divorce went forward without further participation from or notice to husband. In accordance with the provisions of Code § 20-60.3(7), the trial court, in its decree, made a finding of support arrearages under the Agreement.
Husband received a copy of the final decree in September 1990. In November 1991, wife served husband with a Rule to Show Cause. In response, he filed the Motion to Set Aside that provision of the decree that incorporated the Agreement. The denial of that motion is the issue on appeal.
Husband contends that the conduct of wife and her counsel surrounding his signing of the Waiver of Notice constituted actual or constructive fraud that should invalidate the portion of the decree adjudicating the arrearages in spousal support. A party charging actual 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." Winn v. Aleda Construction Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984). Constructive fraud has the same elements, except that the misrepresentation of a material fact is not made with intent to mislead but is made innocently or negligently. Nationwide Mutual Insurance v. Hargraves, 242 Va. 88, 92, 405 S.E.2d 848, 851 (1991). A party alleging fraud must affirmatively prove it by clear and convincing evidence.Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723 (1991).
Husband failed to prove actual or constructive fraud. His argument that the wife intentionally misrepresented a material fact by failing to comply with the provision of her notarized statement that she would not amend the Bill of Complaint has no merit. She did not amend her complaint; the Amended Bill of Complaint was the same in all material respects. The provision in the order for support arrearages, based on the terms of the Agreement, was unaffected by filing the Amended Bill of Complaint, but, rather, was included by statutory requirement.See Code § 20-60.3(7). Accordingly, we affirm the trial court's finding that there was no evidence of fraud.
Husband's due process claim also lacks merit. He contends that he should have been given specific notice that wife was seeking to enforce a claim for an $11,025 arrearage in spousal support. Husband was given notice of the filing of the Bill of Complaint for divorce and that the Agreement which provided for support was to be incorporated in the decree. He had notice of the proceeding and an opportunity to be heard. That is all that due process requires in this case. See Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916 (1991). The amount of the support arrearage followed as the natural consequence of the Agreement and Bill of Complaint, of which he had notice, and Code § 20-60.3(7), which controls.
For the reasons stated, we affirm the decision of the circuit court.
Affirmed.