COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOHN DAVID PELLEGRIN MEMORANDUM OPINION * v. Record No. 0765-98-4 PER CURIAM NOVEMBER 24, 1998 DIANE LYNN BINGMAN PELLEGRIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge
(John D. Pellegrin, pro se, on briefs). (David M. Levy; Surovell, Jackson, Colten & Dugan, on brief), for appellee.
John David Pellegrin (husband) and Diane Lynn Bingman
Pellegrin (wife) entered into a Property, Custody, and Support
Settlement Agreement, which was affirmed, ratified, and
incorporated into the final divorce decree. Husband appeals the
decision of the circuit court denying his request to set aside
the final decree of divorce. He contends that the trial court
erred by (1) failing to find clear and convincing evidence that
wife perpetrated a fraud upon the court; (2) finding that husband
waived his rights to pursue fault-based divorce grounds; (3)
refusing to allow husband to present evidence of financial harm
or to award him attorney's fees and costs; and (4) allowing
certain testimony for impeachment of the parties' daughter. Upon
reviewing the record and briefs of the parties, we conclude that
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
As the party seeking to overturn the trial court's decision,
husband bears the burden to prove reversible error. "Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it."
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668
(1997) (citation omitted).
FRAUD
"One who advances a cause of action for actual fraud bears
the burden of proving by clear and convincing evidence: (1) a
false representation, (2) of a material fact, (3) made
intentionally and knowingly, (4) with intent to mislead, (5)
reliance by the party misled, and (6) resulting damage to the
party misled." Evaluation Research Corp. v. Alequin, 247 Va.
143, 148, 439 S.E.2d 387, 390 (1994).
Husband and wife separated in August 1989. Wife admitted
that she began a sexual relationship with Mark Ramee in late
1989. In her trial testimony, wife denied that she had begun a
sexual relationship with Ramee at the time husband asked her
whether she committed adultery. Husband asserted that he
discussed adultery with wife four specific times between
September 1989 and February 1990. Wife could not recall a
- 2 - specific number of times, but testified that she recalled several
discussions in 1989. Wife also testified that, sometime in
January or February 1990, after her daughters found a letter
written to Ramee, she told husband she was "seeing" someone, to
which husband responded that it was her business. Husband denied
that the conversation took place.
"The credibility of the witnesses is within the exclusive
province of the finder of fact because it uniquely has the
opportunity to see and hear the witnesses testify and weigh their
credibility based upon their appearance, demeanor and manner of
testifying." Estes v. Commonwealth, 8 Va. App. 520, 524, 382
S.E.2d 491, 493 (1989). The trial court noted that husband "has
a tendency . . . to change his position, and to change his
testimony, when it suits him to overturn this Property Settlement
Agreement." On at least one occasion during the trial, husband
reversed his testimony when the court noted he had previously
testified to the contrary. Although in previous pleadings
husband stated that he asked wife if she was guilty of adultery
during the period of August, September, and October of 1989, he
asserted for the first time in this action that he continued to
discuss adultery with wife through February 1990. The trial
court believed wife's testimony and did not believe husband's
testimony concerning when the parties discussed adultery.
The trial court found that husband also failed to establish
reliance on wife's alleged misrepresentation. Husband testified
- 3 - that he would not have entered into the settlement agreement if
he had known about wife's adultery. However, husband also
testified that "these conversations with [wife] about the
adultery question came up totally separately" from the
negotiations on the property settlement agreement. In addition,
wife testified that husband remarked "[i]t's your business" when
she told him that she was seeing someone. One of the daughters
testified that husband indicated to her that it was "no big deal"
that wife was seeing someone. While husband testified that he
would not have agreed to any of the terms of the settlement
agreement, the trial court as fact finder was entitled to give
that testimony whatever weight it deemed appropriate. Therefore, the trial court did not err in finding that
husband failed to establish by clear and convincing evidence that
wife committed actual extrinsic fraud. 1
WAIVER OF FAULT-BASED GROUNDS
In its ruling from the bench, the trial court stated: In the Property Settlement Agreement there is a clause saying that the parties are relying on financial disclosure. It doesn't say anything about them relying on other disclosures. So I don't think the conversations, 1 In her brief, wife objected to the inclusion in the appendix of certain exhibits not admitted into evidence. Husband apparently concedes that these exhibits were not admitted as part of the record but argues that a "good cause exception" under Rules 5A:18 and 5A:25(h) authorizes this Court to consider these exhibits. We find husband's argument unpersuasive. Rule 5A:7 governs what constitutes the record on appeal. As the challenged exhibits are not part of the record on appeal, we do not consider them.
- 4 - whenever they took place, and I think they took place before any adultery was happening, but they didn't have anything to do with the Property Settlement Agreement, in any event. And he said he never talked about it with the lawyers, never talked about adultery with the lawyers, at all, as to what effect it might or might not have.
Husband characterizes this statement as a finding by the trial
court that he waived his right to pursue his remedies for wife's
alleged adultery. We disagree. Instead, the court's remarks set
out additional evidence it considered before finding that there
was insufficient evidence of reliance by husband on any
representations made by wife. As noted above, husband testified
that the settlement negotiations were separate from any
discussions concerning adultery by wife. Therefore, we find
husband's argument to be without merit.
FINANCIAL HARM
The conduct of the trial and the admission of evidence is a
matter left to the discretion of the trial court. See Cunningham
v. Commonwealth, 2 Va. App. 358, 365,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOHN DAVID PELLEGRIN MEMORANDUM OPINION * v. Record No. 0765-98-4 PER CURIAM NOVEMBER 24, 1998 DIANE LYNN BINGMAN PELLEGRIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge
(John D. Pellegrin, pro se, on briefs). (David M. Levy; Surovell, Jackson, Colten & Dugan, on brief), for appellee.
John David Pellegrin (husband) and Diane Lynn Bingman
Pellegrin (wife) entered into a Property, Custody, and Support
Settlement Agreement, which was affirmed, ratified, and
incorporated into the final divorce decree. Husband appeals the
decision of the circuit court denying his request to set aside
the final decree of divorce. He contends that the trial court
erred by (1) failing to find clear and convincing evidence that
wife perpetrated a fraud upon the court; (2) finding that husband
waived his rights to pursue fault-based divorce grounds; (3)
refusing to allow husband to present evidence of financial harm
or to award him attorney's fees and costs; and (4) allowing
certain testimony for impeachment of the parties' daughter. Upon
reviewing the record and briefs of the parties, we conclude that
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
As the party seeking to overturn the trial court's decision,
husband bears the burden to prove reversible error. "Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it."
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668
(1997) (citation omitted).
FRAUD
"One who advances a cause of action for actual fraud bears
the burden of proving by clear and convincing evidence: (1) a
false representation, (2) of a material fact, (3) made
intentionally and knowingly, (4) with intent to mislead, (5)
reliance by the party misled, and (6) resulting damage to the
party misled." Evaluation Research Corp. v. Alequin, 247 Va.
143, 148, 439 S.E.2d 387, 390 (1994).
Husband and wife separated in August 1989. Wife admitted
that she began a sexual relationship with Mark Ramee in late
1989. In her trial testimony, wife denied that she had begun a
sexual relationship with Ramee at the time husband asked her
whether she committed adultery. Husband asserted that he
discussed adultery with wife four specific times between
September 1989 and February 1990. Wife could not recall a
- 2 - specific number of times, but testified that she recalled several
discussions in 1989. Wife also testified that, sometime in
January or February 1990, after her daughters found a letter
written to Ramee, she told husband she was "seeing" someone, to
which husband responded that it was her business. Husband denied
that the conversation took place.
"The credibility of the witnesses is within the exclusive
province of the finder of fact because it uniquely has the
opportunity to see and hear the witnesses testify and weigh their
credibility based upon their appearance, demeanor and manner of
testifying." Estes v. Commonwealth, 8 Va. App. 520, 524, 382
S.E.2d 491, 493 (1989). The trial court noted that husband "has
a tendency . . . to change his position, and to change his
testimony, when it suits him to overturn this Property Settlement
Agreement." On at least one occasion during the trial, husband
reversed his testimony when the court noted he had previously
testified to the contrary. Although in previous pleadings
husband stated that he asked wife if she was guilty of adultery
during the period of August, September, and October of 1989, he
asserted for the first time in this action that he continued to
discuss adultery with wife through February 1990. The trial
court believed wife's testimony and did not believe husband's
testimony concerning when the parties discussed adultery.
The trial court found that husband also failed to establish
reliance on wife's alleged misrepresentation. Husband testified
- 3 - that he would not have entered into the settlement agreement if
he had known about wife's adultery. However, husband also
testified that "these conversations with [wife] about the
adultery question came up totally separately" from the
negotiations on the property settlement agreement. In addition,
wife testified that husband remarked "[i]t's your business" when
she told him that she was seeing someone. One of the daughters
testified that husband indicated to her that it was "no big deal"
that wife was seeing someone. While husband testified that he
would not have agreed to any of the terms of the settlement
agreement, the trial court as fact finder was entitled to give
that testimony whatever weight it deemed appropriate. Therefore, the trial court did not err in finding that
husband failed to establish by clear and convincing evidence that
wife committed actual extrinsic fraud. 1
WAIVER OF FAULT-BASED GROUNDS
In its ruling from the bench, the trial court stated: In the Property Settlement Agreement there is a clause saying that the parties are relying on financial disclosure. It doesn't say anything about them relying on other disclosures. So I don't think the conversations, 1 In her brief, wife objected to the inclusion in the appendix of certain exhibits not admitted into evidence. Husband apparently concedes that these exhibits were not admitted as part of the record but argues that a "good cause exception" under Rules 5A:18 and 5A:25(h) authorizes this Court to consider these exhibits. We find husband's argument unpersuasive. Rule 5A:7 governs what constitutes the record on appeal. As the challenged exhibits are not part of the record on appeal, we do not consider them.
- 4 - whenever they took place, and I think they took place before any adultery was happening, but they didn't have anything to do with the Property Settlement Agreement, in any event. And he said he never talked about it with the lawyers, never talked about adultery with the lawyers, at all, as to what effect it might or might not have.
Husband characterizes this statement as a finding by the trial
court that he waived his right to pursue his remedies for wife's
alleged adultery. We disagree. Instead, the court's remarks set
out additional evidence it considered before finding that there
was insufficient evidence of reliance by husband on any
representations made by wife. As noted above, husband testified
that the settlement negotiations were separate from any
discussions concerning adultery by wife. Therefore, we find
husband's argument to be without merit.
FINANCIAL HARM
The conduct of the trial and the admission of evidence is a
matter left to the discretion of the trial court. See Cunningham
v. Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986).
The trial court noted that, if it set aside the parties' final
decree, the parties would have an opportunity to present evidence
on financial matters at a separate hearing. We find no error in
the trial court's decision to postpone any consideration of
husband's evidence of financial harm.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
- 5 - App. 326, 333, 357 S.E.2d 554, 558 (1987). Because we find that
the trial court did not err in concluding that husband failed to
establish fraud, we find no abuse of discretion in its decision
not to award husband attorney's fees and costs.
IMPERMISSIBLE EVIDENCE
At the hearing below, the parties agreed to the admission,
for purposes of impeachment, of the statement to which husband
now objects. None of the objections which husband now raises
were made at the time the statement was admitted. "In order to
be considered on appeal, an objection must be timely made and the
grounds stated with specificity. Rule 5A:18. To be timely, an
objection must be made when the occasion arises -- at the time
the evidence is offered or the statement made." Marlowe v.
Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)
(citation omitted). The record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18. WIFE'S REQUEST FOR ATTORNEY'S FEES
Wife seeks an award of her appellate attorney's fees. We
find an award is warranted under the provisions of the parties'
settlement agreement. See Pellegrin v. Pellegrin, No. 0143-96-4
(Va. Ct. App. Oct. 29, 1996). We remand this case to the circuit
court for a determination of wife's appellate attorney's fees.
Accordingly, the decision of the circuit court is summarily
affirmed.
- 6 - Affirmed and remanded.
- 7 -