Shirley D. Shockey v J. Donald Shockey, Jr.

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
SHIRLEY D. SHOCKEY
v. 	Record No. 1358-95-4 	MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
J. DONALD SHOCKEY, JR. 	MARCH 5, 1996
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
Perry W. Sarver, Judge
P. Kay Adrian (Chasler, Adrian & Bowman,
P.C., on briefs), for appellant.
Marcia M. Maddox (Heather A. Dipoma, Law
Office of Marcia M. Maddox, on brief), for
appellee.
Shirley D. Shockey appeals the judgment of contempt against
her for failure to endorse tax refund checks as required by the
separation and property settlement agreement that was
incorporated into the final decree of divorce. 	Mrs. Shockey
argues that the provision requiring her to endorse the checks
should be severed from the agreement because Mr. Shockey did not
adequately disclose the nature and amount of the tax refunds
before the agreement was signed. 	We hold that Mrs. Shockey's
appeal is not properly before this Court because she did not
object to or appeal from entry of the final decree. 	That decree
became the final order of the court, and could not be
collaterally attacked in the contempt proceeding. 	We therefore
affirm the court's finding of contempt against Mrs. Shockey, and
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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reverse the trial court's denial of attorney's fees to Mr.
Shockey.
After their separation, Mr. and Mrs. Shockey negotiated a
separation and property settlement agreement. 	The agreement
provided, inter alia, that amended tax returns and refund claims
for prior years were being prepared. 	Mrs. Shockey agreed to sign
the amended returns and to promptly endorse any refund checks,
which would then be paid to Mr. Shockey's Subchapter S
corporations. 	The agreement also provided that the parties had
made full disclosure of the extent of their assets.
The amended returns were prepared between the signing of the
agreement and entry of the final decree. 	Due to losses sustained
by the Subchapter S corporations as well as adjustments made due
to an IRS audit, the refunds due were in excess of $400,000.
Mrs. Shockey claims that when she saw the amended returns, she
learned for the first time that the refunds were substantial and
that they were the parties' personal refunds. 	She failed to
object to the final decree, which incorporated the settlement
agreement, and it was entered on December 14, 1994. 	Mrs. Shockey
did not appeal at that time.
Shortly after entry of the final decree, the refund checks
began to come in. 	Mrs. Shockey refused to endorse them. 	Mr.
Shockey commenced contempt proceedings against Mrs. Shockey in
January 1995. 	Between that time and the contempt hearing on
April 5, he paid the alimony into "escrow" with his attorney.
Mrs. Shockey defended the rule to show cause on the ground that

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Mr. Shockey had misrepresented the amount and nature of the tax
refunds, thus inducing her to agree to sign them over to him
under the agreement, and had failed to disclose the nature and
value of the refunds in violation of the provision on full
disclosure.
The trial court found that Mr. Shockey had made no
misrepresentation and that he disclosed all of his assets. 	The
trial court found both parties in contempt, ordered both parties
to pay interest on the funds withheld, and denied attorney's fees
to both parties.
Although Mrs. Shockey knew all relevant facts concerning Mr.
Shockey's alleged misrepresentation before the final decree was
entered, she waited until the contempt proceedings to raise her
claims concerning Mr. Shockey's failure to disclose. 	When a
separation and property settlement agreement, incorporated into
the final decree of divorce, is attacked in the context of a
contempt proceeding, this constitutes an attack on the decree
itself. 	Rook v. Rook, 233 Va. 92, 94, 353 S.E.2d 756, 757
(1987). 	Under Rule 1:1, the trial court retains jurisdiction
over a final decree for twenty-one days after its entry. 	After
that, absent a perfected appeal, the judgment is final and
conclusive and cannot be collaterally attacked in a contempt
proceeding. 	Id. at 95, 353 S.E.2d at 758.
A judgment that is void may be attacked at any time,
including through a contempt proceeding. 	Id.; Peet v. Peet, 16
Va. App. 323, 326, 429 S.E.2d 487, 490 (1993). 	A judgment

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procured through extrinsic fraud is void, while a judgment
procured through intrinsic fraud is merely voidable. 	Peet, 16
Va. App. at 326, 429 S.E.2d at 490.
Mrs. Shockey's counsel stated at oral argument that she does
not claim that the judgment was procured by fraud. 	Even if she
did so claim, a judgment procured by intrinsic fraud can only be
challenged on direct appeal or by a direct attack in an
independent proceeding. 	Id. 	Mrs. Shockey employed neither of
these methods. 	And, even if her claim is one of extrinsic fraud,
she must prove a misrepresentation. 	Peet, 16 Va. App. at 327,
429 S.E.2d at 490. 	The trial court found that she failed to do
so, and this finding is not clearly erroneous. 	Mrs. Shockey
therefore has no basis to challenge the validity of the agreement
as incorporated into the final decree of divorce, and the
judgment of contempt is affirmed.
Mr. Shockey asks us to reverse the trial court's denial of
attorney's fees. 	The separation and property settlement
agreement provided that in the event of default, the defaulting
party would indemnify the other party for all reasonable expenses
and costs, including attorney's fees, incurred in successfully
enforcing the terms of the agreement. 	Under the terms of the
agreement, Mr. Shockey is entitled to the fees and costs he
incurred in requiring Mrs. Shockey to sign the tax returns, less
any sums incurred by Mrs. Shockey in requiring him to pay
support. 	See Sanford v. Sanford, 19 Va. App. 241, 249-250, 450
S.E.2d 185 (1994). 	We therefore reverse the denial of attorney's

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fees to Mr. Shockey and remand the case to the trial court for a
determination of reasonable attorney's fees including those
incurred upon appeal.
Affirmed in part, reversed in part,
and remanded.