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. 
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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 
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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 
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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, 

 

 1In 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. 
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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. 
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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. 
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 Affirmed and remanded.