Leslie Lovell Warren v Florence Phuong-Dung Pham

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Bumgardner
LESLIE LOVELL WARREN MEMORANDUM OPINION*
v. 	Record No. 0479-98-4 	PER CURIAM
JULY 28, 1998
FLORENCE PHUONG-DUNG PHAM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
(James W. Patterson, on brief), for
appellant.
(Lawrence D. Gaughan; Gaughan &
Schargorodski, on brief), for appellee.
Leslie Lovell Warren (Warren) appeals the decision of the
circuit court dismissing his Petition to Set Aside Equitable
Distribution Based Upon Fraud. 	Warren alleged that Florence
Phuong-Dung Pham (Pham) failed to disclose assets she possessed
at the time of the parties' equitable distribution. 	The circuit
court treated Pham's Motion to Dismiss as a demurrer, found that
Warren's petition alleged intrinsic fraud, and granted the
demurrer. 	Warren contends that the trial court erred by finding
that his petition alleged intrinsic, rather than extrinsic,
fraud. 	Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. 	Accordingly, we
summarily affirm the decision of the trial court. 	See Rule
5A:27.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

-2-
Generally, a judgment or decree rendered
by a court having jurisdiction over the
parties and subject matter must be challenged
by direct appeal and cannot be attacked
collaterally. 	A party may, however, assail a
void judgment at any time, by direct or
collateral attack. 	Although a judgment
obtained by "extrinsic fraud" is void and,
therefore, subject to direct or collateral
attack, a judgment obtained by "intrinsic
fraud" is merely voidable and can be
challenged only by direct appeal or by a
direct attack in an independent proceeding.
Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 490 (1993)
(citations omitted).
Warren filed this collateral action to set aside the
parties' 1993 divorce decree based upon his allegations that Pham
committed extrinsic fraud upon the court by giving false answers
to various interrogatories and in testimony during the parties'
equitable distribution proceeding.
"'[E]xtrinsic fraud' consists of 'conduct which prevents a
fair submission of the controversy to the court . . . ." 	Id. at
327, 429 S.E.2d at 490. 	See Jones v. Willard, 224 Va. 602, 299
S.E.2d 504 (1983) (employee alleged employer intimidated her from
pursuing appeal). 	"'Intrinsic fraud' includes perjury, use of
forged documents, or other means of obscuring facts presented
before the court and whose truth or falsity as to the issues
being litigated are passed upon by the trier of fact." 	Peet, 16
Va. App. at 326-27, 429 S.E.2d at 490 (citations omitted).
Warren alleged Pham committed perjury. 	As we noted in Peet,
[a] collateral attack on a judgment procured
by intrinsic fraud has been deemed not
warranted because the parties have the

-3-
opportunity at trial through
cross-examination and impeachment to ferret
out and expose false information presented to
the trier of fact. 	When a party discovers
that a judgment has been obtained by
intrinsic fraud, the party must act by direct
attack or appeal to rectify the alleged wrong
and cannot wait to assail the judgment
collaterally whenever it is enforced.
Id. at 327, 429 S.E.2d at 490 (citation omitted). 	Nothing in
Warren's allegations suggested that he was denied the opportunity
to "ferret out" false information in the course of the parties'
previous litigation. 	The trial court properly characterized
Warren's allegations as intrinsic fraud and denied his petition
to set aside the equitable distribution order.
We find unpersuasive Warren's argument that Code
§ 8.01-428(c) provides a court unlimited authority to set aside a
judgment procured by fraud. 	Nothing in the statute sweeps so
broadly. 	By its express terms, the statute "does not limit the
power of the court . . . to set aside a judgment or decree for
fraud upon the court." 	(Emphasis added.). 	Nothing in Code
§ 8.01-428(c) overrides the rule of finality of judgments nor
grants the court the authority to set aside what was, at most, a
voidable judgment. 	See generally Rule 1:1.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.