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 
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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.