dissenting:
I respectfully dissent. In my opinion, appellant’s complaint alleges a classic instance of intrinsic fraud which the family court properly dismissed. I would affirm.
A party may bring a suit in equity to set aside a judgment at law allegedly procured by fraud as appellant has, or may move to set the judgment aside under Rule 60(b), SCRCP. While there are certain procedural differences depending on the form of the action, the legal principles are identical: relief is available where the earlier judgment was procured by extrinsic fraud, but a judgment obtained through the use of intrinsic fraud is not subject to collateral attack. The majority and I agree on this point, as we do on the basic definition of intrinsic fraud: a fraud that goes to the merits of the earlier action, that is, to an issue of which the party had both notice and an opportunity to litigate in that prior suit. E.g., Mr. G. v. Mrs. G., 320 S.C. 305, 465 S.E.2d 101 (Ct.App.1995).
Appellant alleges that respondent deliberately concealed a marital asset as part of a scheme to defraud appellant of his rightful share of the equitable division of marital property in the parties’ divorce action. Appellant was undeniably aware that the identity and valuation of assets was at issue in that suit, and had the opportunity to litigate equitable distribution. Accordingly, appellant’s present complaint alleges only intrinsic fraud. The policy reason underlying the bar to intrinsic fraud claims is predicated “on the theory that an issue which has been tried and passed upon in the original action should not be retried in an action for equitable relief against the judgment, and that otherwise litigation would be interminable....” Bryan v. Bryan, 220 S.C. 164, 168, 66 S.E.2d 609, 610 *88(1951) (internal citation omitted). The need for finality of judgments, as well as the potential for endless relitigation, is especially strong in family court matters.
In Bryan, the Court was asked the then-novel question whether perjury or false swearing could form the basis for an action to set aside a judgment. The Court acknowledged the validity of criticisms leveled at the intrinsic/extrinsic fraud distinction, but ultimately adopted that rule. In deciding to adopt this rule, the Court recognized that “the classic example of intrinsic as contrasted with extrinsic fraud is the commission of perjury by a witness. While perjury is a fraud upon the court [it is insufficient for attacking a judgment] because the materiality of the testimony and the opportunity to attack it, was open at the trial.” Bryan at 268, 66 S.E.2d at 611 (internal citation omitted); but see Chewning v. Ford Motor Co., 354 S.C. 72, 579 S.E.2d 605, fn. 2 (2003) (stating that perjury or false swearing is not a fraud upon the court).
The Bryan Court did, however, leave open the possibility that exceptional circumstances involving intrinsic fraud may justify equitable relief. To date, the only time an exception has been made is in Chewning, where the Court held the subornation of perjury by an attorney, or the intentional concealment of documents by an attorney, is a sufficient fraud upon the court to allow a collateral attack on a judgment. In Chewning we were careful to reiterate that perjury by a party or witness, such as the failure of a party to disclose to its adversary or to the court matter which would defeat that party’s claim, or a party’s failure to disclose requested documents, is intrinsic fraud which cannot support a collateral attack oh the judgment. Chewning at 82-83, 579 S.E.2d at 610-611; see also Raby Constr., LLP v. Orr, 358 S.C. 10, 594 S.E.2d 478 (2004).
The fraud alleged by appellant here is classic intrinsic fraud. The majority’s reliance on a federal case decided under Rule 60(b), FRCP,3 and a Texas decision4 is misplaced. In the federal case, the defendant’s attorneys were responsible for *89the concealment of a document,5 a Chewning situation. In the Texas case, the court concluded that the husband’s threats to the wife which caused her to forego an appraisal was “not only-some evidence of extrinsic fraud, but ... evidence ... sufficient to support a jury finding thereon.”6 Here, the alleged concealment of an asset by a party, even one which should have been disclosed pursuant to court ordered discovery, is not extrinsic fraud. Chewning at 82, 579 S.E.2d at 610-611.
The majority’s attempt to limit its new rule to situations where a party’s perjury or concealment is intended to defraud the court does nothing more than restate the current definition of intrinsic fraud. As the Bryan Court recognized, all perjury and all document concealment by a party is an attempt to defraud the court. Furthermore, a person does not commit perjury unless the false testimony is given “willfully.” S.C.Code Ann. § 16-9-10 (2003). If we are to overrule Bryan and eliminate the distinction between intrinsic and extrinsic fraud, then we should acknowledge that we are doing so, not couch it as a “new” definition of extrinsic fraud. In my opinion, however, the strong policy reasons favoring the finality of judgments, especially in family court, militate strongly in favor of retaining the extrinsic/intrinsic fraud distinction. Finally, the majority holds that “an act of perjury or concealment of a document coupled with an intentional scheme to defraud the court justifies the setting aside of a judgment pursuant to Rule 60(b) due to extrinsic fraud.” I simply note that the present case was brought as an independent action, not as a motion under Rule 60(b), SCRCP.
For the reasons given above, I would affirm the trial court’s dismissal of this suit.
WALLER, J., concurs.. Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978).
. Rathmell v. Morrison, 732 S.W.2d 6 (Tex.App.1987).
. A month after stating in its written response to plaintiff's interrogatory that it could locate "no such report,” "an in-house attorney for [defendant] involved in this case discovered [the report] but failed to disclose it or to amend its inaccurate response to [the] interrogatory. ..." Rozier at 1341-1342.
. Rathmell at 14.