COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

WILLIAM McFADDEN AND 

 CATHERINE McFADDEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2086-94-2 JUDGE ROSEMARIE P. ANNUNZIATA 

 DECEMBER 5, 1995 

ALEIDA MEJIA McFADDEN 

 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 Denis C. Englisby (Englisby & Englisby, on brief), 

for appellants. 

 No brief or argument for appellee. 

 Torrence M. Harman (Harman & Harman, on brief), 

Guardian ad litem, for Soley McFadden, an infant. 

 

 * Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 

 Appellants William McFadden (William) and Catherine McFadden 

(Catherine) appeal the order of the circuit court denying 

William's motion to set aside and motion for injunction and 

deciding other issues. Appellants raise the following issues on 

appeal: (1) whether the trial court erred by denying William's 

motion to recuse; (2) whether the trial court erred in sustaining 

the guardian ad litem's motion to strike; and (3) whether the 

trial court erred in denying Catherine's petition to intervene. 

We affirm the trial court's decision. 

 By final decree entered March 2, 1990, Aleida McFadden 

(Aleida) was granted a divorce from William on the ground that 
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the parties had lived separate and apart for one year. The final 

decree incorporated by reference the couple's Separation and 

Property Settlement Agreement (Agreement). The final decree 

noted that "there are two (2) infant children born of the 

marriage," one of whom was Soley Kim McFadden (Soley). In 

pertinent part, the final decree also stated the following: 

ADJUDGED, ORDERED and DECREED that defendant, 

William S. McFadden shall hold, invest and use all 

funds given to him for the purpose of providing 

his children a college education and for no other 

purpose other than to pay the costs of a college 

education for each of the infant children and he 

shall not transfer or dissipate said funds and 

income for any other purpose pursuant to paragraph 

19 of said agreement. 

By decree dated May 29, 1991, the circuit court assumed control 

over those funds when Aleida presented evidence that William was 

misusing the funds in violation of the Agreement. 

 In 1993, William filed a motion pursuant to Code § 8.01-428, 

alleging fraud on the part of Aleida and requesting that the 

divorce case be reinstated on the court's docket. William 

alleged that Soley was not his biological daughter, asked the 

trial court to set aside its factual finding concerning the 

paternity of Soley and her right to the funds being held by the 

court, and sought the return of child support previously paid 

plus additional damages. The court granted the motion of the 

guardian ad litem to strike William's case for his failure to 

establish fraud on the part of Aleida. 
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 I.

 "It is within the trial judge's discretion to determine 

whether he harbors bias or prejudice which will impair his 

ability to give the defendant a fair trial." Terrell v. 

Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991). 

 "In exercising such discretion, a judge must not only 

consider his or her true state of impartiality, but also the 

public's perception of his or her fairness, so that the public 

confidence in the integrity of the judicial system is 

maintained." Buchanan v. Buchanan, 14 Va. App. 53, 55, 415 

S.E.2d 237, 238 (1992). However, "[e]ven when circumstances 

create an appearance of bias, unless the conduct of the judge is 

shown to have affected the outcome of the case," the trial 

court's determination will not be reversed. Welsh v. 

Commonwealth, 14 Va. App. 300, 317, 416 S.E.2d 451, 461 (1992), 

aff'd, 246 Va. 337, 437 S.E.2d 914 (1993). The trial court's 

determination will be reversed on appeal only for an abuse of 

discretion. Terrell, 12 Va. App. at 293, 403 S.E.2d at 391. 

 William's motion to recuse noted that he had filed a 

complaint against the judge with the Judicial Inquiry and Review 

Commission. In addition, William contended that because the 

judge had been involved in the earlier divorce action and had 

previously ruled against him, the judge was biased against him. 

William also alleged that the judge engaged in ex parte

communications with Aleida and failed to place William's 
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correspondence and pertinent orders into the record. 

 The filing of a complaint against a judge does not require 

recusal. See id. at 293, 403 S.E.2d at 391. Similarly, 

"`[m]erely because a trial judge is familiar with a party and his 

legal difficulties through prior judicial hearings . . . does not 

automatically or inferentially raise the issue of bias.'" 

Buchanan, 14 Va. App. at 55, 415 S.E.2d at 238 (quoting Deahl v. 

Winchester Dep't. of Social Servs., 224 Va. 664, 672-73, 299 

S.E.2d 863, 867 (1983). 

 Moreover, nothing in the record supports William's claim 

that the judge participated in improper ex parte communication. 

On the contrary, the record indicates that, despite the high 

volume of letters filed throughout the course of the litigation, 

the judge kept all parties notified of correspondence it received 

from each side. Even accepting the allegation that several 

documents are missing from the record, we cannot say that this 

factor illustrates prejudice or bias on the part of the judge 

against William. Therefore, we cannot say that the judge's 

denial of William's motion to recuse was a clear abuse of 

discretion. 

 II. 

 "Upon familiar principles, we review the evidence on appeal 

in the light most favorable to wife, the party prevailing below." 

Cook v. Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994). 

 "'Where . . . the court hears the evidence ore tenus, its 
 5 

finding is entitled to great weight and will not be disturbed on 

appeal unless plainly wrong or without evidence to support it.'" 

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 

631 (1988) (quoting Martin v. Pittsylvania Dep't of Social 

Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). 

 William filed a motion, pursuant to Code § 8.01-428(D),1 to 

set aside portions of the final divorce decree. William alleged 

that Aleida fraudulently misrepresented that William was Soley's 

father. As the party seeking to set aside a final order on the 

basis of fraud, appellant had the burden of proving "`(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.'" 

Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723 

(1991) (quoting Winn v. Aleda Constr. Co., Inc., 227 Va. 304, 

308, 315 S.E.2d 193, 195 (1984)). 

 While William presented the results of a blood test as 

evidence that he was not Soley's father, he presented no evidence 

establishing Aleida's knowing or intentional misrepresentation of 

 

 1This subsection provides as follows: 

 This section does not limit the power of the court 

to entertain at any time an independent action to 

relieve a party from any judgment or proceeding, 

or to grant relief to a defendant not served with 

process as provided in § 8.01-322, or to set aside 

a judgment or decree for fraud upon the court. 

Prior to the 1993 amendment, this subsection was codified as 

§ 8.01-428(C). 
 6 

the paternity of Soley. On the contrary, Aleida testified that 

she was "shocked" to learn the results of the blood test and 

maintained throughout her testimony that she believed that Soley 

was, in fact, William's child. Aleida denied having intercourse 

with anyone other than William during their marriage, although 

she admitted she had been raped in the parking lot of her place 

of employment. Aleida also admitted she had not reported the 

rape to the police or to William, but testified that she was 

"very, very afraid of the reaction from my husband" if she had 

disclosed the rape. Aleida testified that "I had no reason to 

believe at the time that Soley -- the birth of Soley had any 

relation to that. But I don't know for sure." 

 The trial judge, who had the opportunity to observe the 

witnesses, found Aleida's testimony credible. "Where the 

credibility of witnesses is crucial to the determination of 

whether the facts support a finding of fraud, the judge's 

evaluation of the witnesses' testimony heard ore tenus and the 

weight to be given the testimony will not be disturbed on appeal 

unless the judge's findings are plainly wrong or without evidence 

to support them." Dunbar v. Hogan, 16 Va. App. 653, 657, 432 

S.E.2d 16, 18 (1993) (citing Shortridge v. Deel, 224 Va. 589, 

592, 299 S.E.2d 500, 502 (1983)). 

 "The charge of fraud is one easily made, and the burden is 

upon the party alleging it to establish its existence, not by 

doubtful and inconclusive evidence, but clearly and conclusively. 
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 Fraud cannot be presumed. It must be proved by clear and 

satisfactory evidence." Aviles v. Aviles, 14 Va. App. 360, 366, 

416 S.E.2d 716, 719 (1992). To establish a prima face case where 

 close family relationships underlie the alleged fraudulent 

transaction, only slight evidence is required, however. Haynes 

v. Bunting, 152 Va. 395, 399, 147 S.E. 211, 212 (1929). The 

prima facie showing in this case turned on the credibility of the 

witnesses which the trial judge resolved in favor of Aleida. As 

William failed to establish a prima facie case that Aleida 

intentionally and knowingly made a false representation of a 

material fact with the intent to mislead, we cannot say the trial 

judge erred in granting the guardian ad litem's motion to strike. 

 III. 

 Under Rule 2:15, "[a] new party may by petition filed by 

leave of court assert any claim or defense germane to the subject 

matter of the suit." An intervenor must assert some right or 

claim involved in the suit. Layton v. Seawall Enters., Inc., 231 

Va. 402, 403, 344 S.E.2d 896, 897 (1986). The denial of a 

petition to intervene will not be overturned on appeal absent an 

abuse of discretion. See Shank v. Department of Social Servs., 

217 Va. 506, 511, 230 S.E.2d 454, 457 (1976). 

 Catherine, Soley's grandmother, filed a petition to 

intervene in order to participate in the disposition of funds 

held by the court pursuant to its previous orders. The Agreement 

and the final decree of divorce provided that William was 
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responsible for holding these funds. Catherine contends that the 

funds belong to her. 

 The decree's provision was enforceable by the court through 

its contempt powers. Doherty v. Doherty, 9 Va. App. 97, 99, 383 

S.E.2d 759, 760 (1989). Under neither the court's decree nor the 

Agreement did Catherine retain a right to recover these funds. 

 Moreover, in the arguments before the trial court, Catherine 

challenged the court's decision in 1991 to hold the funds in 

trust following William's misuse of those funds. Catherine did 

not pursue an appeal of the court's order at that time and it 

became final. Rule 1:1. While it may be noted that Catherine 

has not been a party in this matter, the record contains many 

letters to the court from Catherine demonstrating that she 

followed the litigation closely, but failed to seek relief from 

the final orders effecting the disposition of the funds. 

 Ultimately, Catherine's petition to intervene is linked to 

the allegation of fraud made by William in his motion to set 

aside portions of the divorce decree. The trial court ruled that 

William had failed to establish fraud. Therefore, we cannot say 

that the trial court's decision denying Catherine's petition to 

intervene was an abuse of discretion. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed. 
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Hodges, J. dissenting. 

 I am constrained to dissent from the majority opinion. The 

issue in this case revolves on the credibility of the appellee 

who was called as an adverse witness by William. The fact that 

William is not the father of the child is undisputed. 

 Because of the birth control practices of the parties before 

the child's birth, William was suspicious when the child was 

born. Until the DNA testing, he had no knowledge that he was not 

the father and to that point had supported and assumed his 

paternal responsibilities. There is absolutely no evidence to 

show that he assumed any obligation to the child with knowledge 

of paternity by another. 

 When the appellee was confronted with the DNA results, she 

through her counsel endorsed a consent decree which would have 

adjudicated that William was not the father and that he be 

relieved of any further obligation for support. The trial court 

rejected the decree but did grant William leave to proceed with a 

hearing. When called as an adverse witness by William, appellee 

testified as follows: 

 Q. Okay. Were you having sexual intercourse with 

another man prior to the time Soley was born? 

 A. On that, I can say that there was a time when 

I was raped in the parking lot of my work; and I had no 

reason to believe at the time that Soley -- the birth 

of Soley had any relation to that. But I don't know 

for sure. In my heart, I know that Soley is Bill's 

father -- I mean, Soley's father. 

 Q. You were raped in the parking lot? 

 A. At my work. Correct. 
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 Q. Prior to Soley's birth? 

 A. I don't remember exactly at what time. I 

wanted to get it out of my mind. 

 Q. Yes, ma'am. Did you report it to the police? 

 A. No. 

 Q. No. 

 A. I did not report it to the police or to my 

husband because I was very, very afraid of the reaction 

from my husband, what he would do, whether he would 

come to work and maybe start killing everyone. 

Furthermore, I would end up losing my job as a result. 

 He would probably end up killing me for not having a 

job. 

 Q. Yes, ma'am. Have you ever had sexual 

intercourse with another man other than the rapist 

prior to Soley's birth? 

 A. No, sir. Never. During my marriage, I never 

-- As a matter of fact, I never had anything else to do 

with any other man besides my husband Bill McFadden at 

that time and now my current husband. 

 On motion of the child's guardian ad litem, the trial judge 

in reliance on the foregoing testimony of the appellee, struck 

William's evidence. 

 "The court is the judge of the credibility of the witnesses, 

and its findings are of great weight on appeal." Klein v. Klein, 

11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990) (citing 

Shortridge v. Deel, 224 Va. 589, 592, 299 S.E.2d 500, 502 

(1983)). 

 "The [fact finder's determination] . . . may only be 

disturbed on appeal if this Court finds that [the 

witness'] . . . testimony was 'inherently incredible, or so 
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contrary to human experience as to render it unworthy of 

belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 

S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 

296, 299-300, 321 S.E.2d 202, 204 (1984) (Robertson involved a 

challenge to the credibility of the key witness). 

 I find the appellee's testimony to be inherently incredible. 

 She did not remember whether the alleged rape occurred before or 

after the child's birth; she did not report it to the police; and 

most importantly, did not report it to her husband or any other 

family member. Moreover, appellee's uncertainty of when the rape 

was committed completely eliminated any consideration that 

conception resulted from such a dastardly, despicable act if it 

did in fact take place. 

 On this evidence, it will be a grave injustice to require 

William to support a child undisputedly not his. I would reverse 

and remand for a full hearing.