Opinion
Record No. 2321-91-1
October 20, 1992
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE RUSSELL I. TOWNSEND, JR., JUDGE.
(Andrew R. Sebok, on brief), for appellant.
(Gregory S. Larsen; Roy, Forehand, Laine Larsen, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Frances Anne Sutton Young sought a divorce from her husband, William Young, III. The case was referred to a commissioner in chancery, who held a hearing in April, 1991. At that hearing, the counsel for both parties agreed that the evidence would prove a one year separation and both presented evidence. When the commissioner submitted the report to the trial judge, the parties filed objections to the report. Wife then acquired different counsel, who moved for a continuance of the exceptions hearing and asked that the case be referred again to the commissioner so that evidence regarding the value and nature of several disputed assets, which had not been presented by her former attorney, could be considered. The trial judge declined to either continue the hearing or return the case to the commissioner, concluding that both parties had had a full and fair opportunity to be heard. The trial judge did, however, accept evidence regarding spousal support for wife, whose former counsel had not addressed this issue at the commissioner's hearing.
Following the trial judge's disposition of objections and determination of spousal support for wife, wife's counsel requested leave to file late objections to the commissioner's report and again asked for referral of the case to the commissioner. Counsel challenged the fairness of the equitable distribution which gave wife the marital home and responsibility for the debt thereon. After hearing arguments, the trial judge denied the motion on the ground that "substantial equity has been achieved in this case" and entered a Decree a Vinculo Matrimonii.
On this appeal, wife challenges the trial judge's refusal to return the case to the commissioner. She now asserts that the refusals were erroneous because husband introduced fraudulent evidence below. In addition, wife alleges that the trial judge erred in refusing to certify her statement of facts in lieu of a transcript under Rule 5A:8(c). We affirm the judgment of the trial court.
"The question of when it is proper, or may be useful, to resort to the aid of a commissioner is one which addresses itself to the sound discretion of the court." Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d 866, 869 (1990). In argument before the trial judge on the exceptions, wife did not assert the existence of fraud. The argument focused instead on the failure of her original counsel to call certain witnesses and introduce certain evidence. After listening to counsel's arguments, the trial judge exercised his discretion in declining to send the case back to the commissioner. We conclude that these decisions by the trial judge were well within his discretion.
Wife first brought the issue of fraud before the trial judge eight weeks after entry of the divorce decree. Wife's counsel raised the issue when he attempted to have the court certify a statement of facts for this appeal. See Rule 5A:8(c). Counsel admitted that prior to entry of the final decree he knew of the material which allegedly proved husband's fraud. As the trial judge noted, wife had ample time to raise these allegations before the decree became final.
The judgment of a court, procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related to issues material to the judgment, is voidable by direct attack at any time before the judgment becomes final; the judgment of a court, procured by extrinsic fraud, i.e., by conduct which prevents a fair submission of the controversy to the court, is void and subject to attack, direct or collateral, at any time.
Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983) (original emphasis deleted, emphasis added). See also Holmes v. Holmes, 8 Va. App. 457, 459, 382 S.E.2d 27, 28 (1989). The judgment of the trial court became final on December 24, 1991, twenty-one days after entry of the final decree. Rule 1:1. Wife's fraud allegations were of an intrinsic nature and were raised in the trial court after that court lost jurisdiction over the case. See Rook v. Rook, 233 Va. 92, 353 S.E.2d 756 (1987).
We conclude that the trial judge did not err in declining to certify the wife's statement of facts. Transcripts of all proceedings are part of the record on appeal. Rule 5A:7(a)(7). This record contains all the relevant transcripts. However, wife chose to prepare a statement of facts pursuant to Rule 5A:8(c) so that she could include, in footnotes to the narration of events, her allegations as to the fraudulent nature of much of husband's evidence. Counsel for husband objected to the propriety of this document, stating that transcripts were available and that wife was improperly attempting to introduce new evidence not proved at trial. The record discloses that the proposed statement of facts contained assertions of facts that were not produced at trial. In addition, the transcripts of all the relevant hearings were timely filed. Accordingly, we conclude that the trial judge did not err in certifying the transcript and refusing to sign the erroneous statement of facts.
For the reasons stated, we affirm the chancellor's decision.
Affirmed.