Henry M. Ellett v. Cynthia H. Ellett

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia

HENRY M. ELLETT
OPINION BY
v. Record No. 0824-00-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 13, 2001
CYNTHIA H. ELLETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

J.W. Harman, Jr. (Harman & Harman, P.C., on
brief), for appellant.

Kimberlee Harris Ramsey (Robert J. Kloeti;
Florance, Gordon and Brown, P.C., on brief),
for appellee.

Appellant, Henry M. Ellett ("husband"), contends on appeal

that the trial court erred in sustaining the demurrer raised by

the appellee, Cynthia H. Ellett ("wife"), to husband's bill of

complaint asking the court to declare the parties' separation

agreement null and void. For the reasons that follow, we affirm.
The parties were married on December 5, 1992 and separated

on or about November 17, 1996. On March 29, 1997, the parties

executed a property settlement agreement, which was incorporated

into a final decree of divorce on April 20, 1998. Husband sought

to have the agreement declared null and void in a bill of

∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
complaint filed on August 10, 1999, and in a subsequent amended

bill of complaint filed December 21, 1999. The trial court

sustained wife's demurrer to both the initial bill and the

amended bill of complaint.

On appeal, we will sustain the demurrer if the husband's

complaint, considered in the light most favorable to the husband,

fails to state a valid cause of action. McDermott v. Reynolds,

260 Va. 98, 100, 530 S.E.2d 902, 903 (2000). In conducting our

review, we consider as true the facts alleged in husband's

complaint as well as the reasonable inferences that can be drawn

from such facts. Id.

In order to challenge the validity of a separation agreement

that has been incorporated into a divorce decree, the challenge

must be brought within twenty-one days after the entry of the

divorce decree. Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756,

757-58 (1987). After the passage of twenty-one days from the

entry of a judgment, the judgment becomes final and conclusive,

absent a perfected appeal. Rook, 233 Va. at 95, 353 S.E.2d at

758; see also Golderos v. Golderos, 169 Va. 496, 501-02, 194 S.E.
706, 707-08 (1938). Accordingly, any challenge to the agreement

may be made only upon grounds sufficient to sustain a challenge

to the divorce decree itself. See Higgins v. McFarland, 196 Va.

889, 896-97, 86 S.E.2d 168, 173 (1955); Wallihan v. Hughes, 196

Va. 117, 125-31, 82 S.E.2d 553, 559-62 (1954); Greschler v.

Greschler, 414 N.E.2d 694, 699 (N.Y. 1980).

A final and conclusive judgment that is void, however, may

be attacked in any court, at any time, directly or collaterally.

Rook, 233 Va. at 95, 353 S.E.2d at 758. A void decree is one

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that has been obtained by extrinsic or collateral fraud or was

entered by a court that did not have jurisdiction over the

subject matter or the parties. Id. The husband does not claim

that the court was without jurisdiction. We thus confine our

inquiry to whether the allegations in the bill of complaint are

sufficient to establish a claim of extrinsic fraud.

Extrinsic fraud consists of "conduct which prevents a fair

submission of the controversy to the court." Jones v. Willard,

224 Va. 602, 607, 299 S.E.2d 504, 508 (1983). Extrinsic fraud

does not include fraud relating to a "matter on which the

judgment or decree was rendered," or involving an "act or

testimony the truth of which was, or might have been, in issue in

the proceeding before the court which resulted in the judgment

that is thus assailed." Taylor v. Taylor, 159 Va. 338, 344, 165

S.E. 414, 415 (1932); see also Rowe v. Big Sandy Coal Corp., 197

Va. 136, 143, 87 S.E.2d 763, 767-68 (1955); McClung v. Folks, 126

Va. 259, 269, 101 S.E. 345, 348 (1919); In re Miller, 902 P.2d

1019, 1022-23 (Mont. 1995). Rather, the fraud must be

"'extrinsic or collateral to the questions examined and

determined in the action.'" McClung, 126 Va. at 269, 101 S.E. at

348 (quoting United States v. Throckmorton, 98 U.S. 61, 66

(1878)). Extrinsic fraud includes such circumstances as bribery

of a judge or juror, In re Miller, 902 P.2d at 1022; fabrication

of evidence by an attorney, id.; preventing another party's

witness from appearing, Powell v. Commonwealth, 133 Va. 741, 754,
112 S.E. 657, 661 (1922); intentionally failing to join a

necessary party, Gulfstream Bldg. Associates, Inc. v. Britt, 239

Va. 178, 184, 387 S.E.2d 488, 492 (1990); or misleading another

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party into thinking a continuance had been granted, National

Airlines, Inc. v. Shea, 223 Va. 578, 583, 292 S.E.2d 308, 311

(1982).

To support his claim of extrinsic fraud, the husband

alleged, in substance, that: (1) before the parties entered the

agreement, wife misrepresented the true status of the family's

bills and accounts and thereby prevented his becoming informed of

these accounts; (2) wife discouraged him from obtaining counsel

during the time the agreement was negotiated and executed; (3)

husband executed the agreement under duress and undue influence

exercised by wife; (4) the agreement's provisions with respect to

property division, child and spousal support, and child custody

are unconscionable; and (5) during negotiations, wife

misrepresented her intent to abide by the terms of the agreement,

thereby inducing him to execute it, and wife later breached the

agreement.
The facts alleged do not support a claim of extrinsic fraud.

Each of husband's challenges pertains to matters that could have

been raised during the divorce proceeding. See Taylor, 159 Va.

at 344, 165 S.E. at 415. The parties placed the validity of the

agreement at issue by asking the court to incorporate the

agreement into the final divorce decree. Claims pertaining to

fraud in the procurement of the agreement, and claims based on

duress, undue influence and unconscionability, all involve

challenges to the agreement that could have been raised during

the divorce proceeding, and do not involve "extrinsic" fraud, or

fraud upon the court. See Wallihan, 196 Va. at 130-31, 82 S.E.2d

at 561-62 ("When the parties are before a court of competent

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jurisdiction and a separation agreement is approved, confirmed

and decreed upon, its validity is by that judgment rendered res

judicata between the parties. . . . [The wife] may not now 'go

behind the judgment of the court' and say that the contract was

secured through fraud." (citation omitted); holding that such a

challenge did not involve extrinsic fraud); see also Cerniglia v.

Cerniglia, 679 So.2d 1160, 1163 (Fla. 1996) (where wife

challenged property settlement agreement incorporated into

divorce decree on grounds of involuntariness, coercion, duress,

enticement and fraudulent financial disclosure, court held these

allegations constituted intrinsic fraud, and were insufficient to

void a final decree); Spaulding v. Spaulding, 561 P.2d 420 (Kan.
1977) (where husband alleged he entered separation agreement

involuntarily and under duress, court found this did not

establish the sort of fraud necessary to void a divorce decree);

Van Sickle v. Harmeyer, 172 Ill. App. 218 (1912) (where wife

challenged settlement agreement on ground husband induced wife to

enter agreement based on promises he had no intention of

performing, court held this was insufficient to void final

divorce decree); In re Miller, 902 P.2d at 1022 ("[F]raud between
the parties . . . is not fraud upon the court.").

Because husband failed to allege facts sufficient to sustain

a claim of extrinsic fraud, we affirm the trial court's decision

to sustain the wife's demurrer.

Affirmed.

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