COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

RHONDA G. CAMPBELL 

 MEMORANDUM OPINION* BY 

v. Record No. 0172-97-2 JUDGE LARRY G. ELDER 

 JANUARY 26, 1999 

JONATHAN S. CAMPBELL 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Keith B. Marcus (Phillips, Webb & 

Wallerstein, on brief), for appellant. 

 Mary Kathryn Hart (Rohde, Clarke & Prince, on 

brief), for appellee. 

 Rhonda G. Campbell (wife) appeals from an order terminating 

the obligation of Jonathan S. Campbell (husband) to pay child 

support for Gregory A. Campbell (child), following a 

determination through genetic testing that husband is not the 

father of the child. On appeal, wife contends that the court 

erroneously terminated the award because (1) husband failed to 

prove wife perpetrated a fraud on the court in obtaining a 

judicial declaration of parentage and (2) husband is collaterally 

estopped from challenging the final decree of divorce in which 

the court previously found that Gregory was born of the parties' 

marriage.1 For the reasons that follow, we affirm the ruling of 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 1Husband earlier moved to dismiss the appeal based on wife's 

alleged failure timely to file an appeal bond. Wife subsequently 

provided a copy of the bond, and at oral argument, husband 

conceded that the bond had been timely filed. 
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the trial court. 

 I. 

 FACTS 

 The parties were married on June 24, 1985. The child was 

born on March 19, 1991. On July 30, 1992, wife filed a bill of 

complaint for divorce in which she alleged "[t]here was one 

child[, Gregory,] born of the . . . marriage," and she requested 

custody of the "child of the parties." Although husband was 

personally served with the bill of complaint, he did not appear 

or file a response. Wife filed depositions of her sister and 

herself. Both wife and her sister testified on deposition that 

Gregory was a "child[] born of [her] marriage" to husband. On 

September 11, 1992, the circuit court entered a final decree of 

divorce, in which it found "that there was one child born of [the 

parties'] marriage namely Gregory Alan William Campbell, born 

March 19, 1991." The court awarded wife custody of the child and 

transferred "all future matters pertaining to custody, visitation 

and support of [the] child" to the juvenile and domestic 

relations district court (JD&R court). 

 Subsequently, wife attempted to collect child support from 

husband through the Division of Child Support Enforcement (DCSE). 

 On January 22, 1996, DCSE entered an administrative order 

requiring husband to pay support for the child. Husband 

challenged the support order in the JD&R court, claiming he was 

not the child's father. Although genetic testing ordered by the 
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JD&R court confirmed that husband was not child's father, the 

JD&R court held that it lacked jurisdiction to overturn the 

circuit court's prior paternity determination contained in the 

final decree of divorce. 

 Husband appealed the JD&R court's ruling on the support 

order. He simultaneously petitioned the circuit court to set 

aside the final decree of divorce and paternity determination 

therein based on wife's alleged fraud and to "reinstate 

[husband's] divorce action." In the circuit court, husband 

testified that the parties first separated in 1990 and that they 

did not live together or have sexual relations during the period 

in which the child, born March 19, 1991, was conceived. Husband 

testified that a week after he and wife reconciled in August of 

1990, wife told him she was pregnant by a man named "Joe" and 

showed him a positive home pregnancy test. He and wife separated 

again, for the final time, in September or October of 1990. 

Husband admitted that he sent the child an Easter card--addressed 

"To My Little Boy" and signed "Love, Your Dad"--but contended 

that he did so because he felt sorry for the child and that he 

knew he was not the father. Wife did not contact him when the 

child was born or when he sent the card, and he had no 

involvement in the child's upbringing beyond sending the card. 

He was aware that the child had his last name. 

 Husband testified "that he became aware of the divorce when 

he was personally served papers at the Sheriff's office" but that 
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"he did not read the papers because [wife] assured him she wanted 

nothing from him." He testified that he was not represented by 

counsel in the divorce proceeding and that "it did not occur to 

him that a child that [wife] had admitted was not his would be 

mentioned in the divorce papers." 

 Wife moved to strike husband's case on the basis "that he 

had failed to prove fraud; that he acknowledged that he was the 

father of Gregory; and that it was contrary to the well 

established law of Virginia." The court denied the motion. Wife 

presented no evidence and renewed her motion, which the court 

again denied. 

 Husband argued that wife had perpetrated a fraud on the 

court and DCSE by "attesting that Gregory was a child of the 

marriage," which fraud allowed the court to revisit the issue of 

paternity; that, based on wife's fraud, husband's failure to 

appear in the divorce proceeding despite notice should not 

prevent him from challenging the decree; and that the ends of 

justice would be served by ending wife's falsehoods. He sought 

termination or reduction of his child support obligation to both 

wife and DCSE. 

 By letter of November 13, 1996, and order entered December 

23, 1996, the circuit court found the following: 

 [I]t is undisputed that [husband] is not the 

father of [the child]; that [husband] has not 

had any direct contact with the [mother/wife] 

. . . or [the child]; that [wife] has not 

been honest with this Court or [DCSE]; and 

that [husband] had notice of the divorce 

proceedings but chose not to do anything 
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about it . . . . 

Based on those findings, it terminated the order of support to 

wife but required husband to pay the support arrearage owed to 

DCSE. Counsel for wife endorsed the order as "seen and objected 

to as contrary to law and evidence" and noted this appeal. 

 II. 

 ANALYSIS 

 A. 

SUFFICIENCY OF EVIDENCE TO PROVE FRAUD 

 "On appeal, we view the evidence and all reasonable 

inferences therefrom in the light most favorable to the 

prevailing party below." Reece v. Reece, 22 Va. App. 368, 372, 

470 S.E.2d 148, 151 (1996). "It is well established that the 

credibility of witnesses and the weight accorded to their 

testimony are matters solely within the purview of the trial 

court, and its findings will be reversed on appeal only if 

'plainly wrong or without evidence to support them.'" Brooks v. 

Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 (1994) (quoting 

Wyatt v. Department of Soc. Servs., 11 Va. App. 225, 230, 397 

S.E.2d 412, 415 (1990)). 

 Wife contends husband's evidence failed to prove she 

committed a fraud on the court. Under the standards set out 

above, we find no error. 

 To establish fraud, the party alleging it "has the burden of 

proving '(1) a false representation, (2) of a material fact, (3) 
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made intentionally and knowingly, (4) with intent to mislead, (5) 

reliance by the party misled, and (6) resulting damage to the 

party misled.' The fraud must be proved by clear and convincing 

evidence." Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 

S.E.2d 721, 723 (1991) (quoting Winn v. Aleda Constr. Co., 227 

Va. 304, 308, 315 S.E.2d 193, 195 (1984)); see also Code 

§ 8.01-428(D) (noting that cited code section, which permits a 

court to set aside default judgments and correct clerical errors 

under certain conditions, "does not limit the power of the court 

to entertain at any time an independent action . . . to set aside 

a judgment or decree for fraud upon the court"). 

 Fraud falls into one of two categories--intrinsic or 

extrinsic. 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 v. Peet, 16 Va. App. 

323, 326-27, 429 S.E.2d 487, 490 (1993). Intrinsic fraud renders 

a judgment voidable only; it may be assailed only on direct 

appeal and not by collateral attack. See id. In cases involving 

only intrinsic fraud, "the parties have the opportunity at trial 

through cross-examination and impeachment to ferret out and 

expose false information presented to the trier of fact." Id. at 

327, 429 S.E.2d at 490. "'The reason of this rule is[] that 

there must be an end of litigation . . . . Endless litigation, 

in which nothing was ever finally determined, would be worse than 
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occasional miscarriages of justice . . . .'" McClung v. Folks, 

126 Va. 259, 269-70, 101 S.E. 345, 348 (1919) (quoting Pico v. 

Cohn, 25 P. 970, 971, aff'd on reh'g en banc, 27 P. 537 (Cal. 

1891)). 

 Extrinsic fraud occurs outside the judicial process and 

"consists of 'conduct which prevents a fair submission of the 

controversy to the court.'" Peet, 16 Va. App. at 327, 429 S.E.2d 

at 490 (quoting Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 

504, 508 (1983)). It includes "'[k]eeping the unsuccessful party 

away from the court by a false promise of a compromise[] or 

purposely keeping him in ignorance of the suit . . . . In all 

such instances the unsuccessful party is really prevented, by the 

fraudulent contrivance of his adversary, from having a trial 

. . . .'" McClung, 126 Va. at 270, 101 S.E. at 348 (quoting 

Pico, 25 P. at 971); see O'Neill v. Cole, 194 Va. 50, 57, 72 

S.E.2d 382, 386 (1952) (holding sufficient to state a claim of 

extrinsic fraud allegations in complaint that father made false 

statements to daughter to persuade her not to contest judicial 

transfer of her property to him). Under these circumstances, 

"[a] collateral challenge to a judgment . . . is allowed because 

such fraud perverts the judicial processes and prevents the court 

or non-defrauding party from discovering the fraud through the 

regular adversarial process." Peet, 16 Va. App. at 327, 429 

S.E.2d at 490. 

 Viewing the evidence in this case in the light most 
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favorable to husband, wife's fraud was both intrinsic and 

extrinsic. Husband testified that, although he was served with 

the divorce papers, he did not read them because "[wife] assured 

him she wanted nothing from him" in the divorce. In reality, 

wife sought and obtained the fraudulent determination of 

parentage. Husband's testimony about wife's actions outside the 

proceeding supported a finding of extrinsic fraud; it proved that 

wife intentionally and knowingly made a false representation of 

material fact with intent to mislead husband and that husband 

relied on that representation to his detriment. See O'Neill, 194 

Va. at 57, 72 S.E.2d at 386; McClung, 126 Va. at 270, 101 S.E. at 

348. This evidence of extrinsic fraud provided the court with 

jurisdiction to entertain husband's collateral attack on the 

judgment and to consider the allegations of intrinsic fraud, as 

well. 

 The record, viewed in the light most favorable to husband, 

also contains ample evidence of wife's intrinsic fraud. Wife 

represented in her 1992 bill of complaint for divorce that the 

child was born of the parties' marriage, and she and her sister 

gave deposition testimony to that effect. However, genetic 

testing performed in 1996 confirmed that husband, in fact, was 

not the child's father. Furthermore, in the circuit court 

proceedings, husband testified that he and wife were separated 

and did not have sexual relations during the time the child was 

conceived. He also testified that wife told him when they 
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reconciled briefly in 1990 that she was pregnant with another 

man's child. Finally, wife did not testify and provided no 

evidence disputing husband's testimony regarding her knowledge of 

the child's paternity. 

 Based on this evidence, the trial court was entitled to 

conclude that husband's testimony was credible and that wife, in 

the 1992 divorce proceeding, knowingly misrepresented the child's 

paternity to the court and that she did so with an intent to 

mislead the court. See Batrouny, 13 Va. App. at 443-44, 412 

S.E.2d at 723 (holding wife's "admission that she has always 

known the child was not born of the marriage, when viewed in 

light of her assertion in the pleading to the contrary, is 

convincing evidence of her intent to defraud"). The evidence 

also shows that the court relied on wife's representation that 

husband was the child's father when, in the final decree, it 

ruled that the child was born of the parties' marriage and 

awarded custody to wife. See id. at 443, 412 S.E.2d at 723. 

 On appeal, wife cites the "fundamental principle of equity 

jurisprudence that a litigant who files an independent action in 

equity to set aside a judgment must be free of fault or neglect." 

See Charles v. Precision Tune, Inc., 243 Va. 313, 318, 414 

S.E.2d 831, 833 (1992). She contends that husband was not free 

of fault because he was personally served with the bill of 

complaint for divorce but failed to read it, file an answer or 

make an appearance. He knew at that time that the child was not 
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his, and had he participated in the proceedings, she contends, he 

could have prevented the court from making the finding of 

paternity he now contests. 

 Although we acknowledge that wife's quotation accurately 

reflects the law, we disagree that this equitable principle 

applies in this appeal. As husband contends, the record gives no 

indication that wife presented this argument to the trial court. 

See Anderson v. Commonwealth, 251 Va. 437, 439, 470 S.E.2d 862, 

863 (1996) (holding that appellant bore the burden of furnishing 

a record sufficient to permit appellate review). The statement 

of facts indicates only that wife moved to strike on the ground 

"that [husband] failed to prove fraud; that he acknowledged that 

he was the father of Gregory; and that it was contrary to the 

well established law of Virginia."2

 None of these objections 

specifically preserves the issue wife now raises. Therefore, 

under Rule 5A:18, the record is insufficient to preserve this 

issue for appeal. 

 B. 

 COLLATERAL ESTOPPEL 

 Wife also contends that husband is collaterally estopped by 

the paternity determination in the final decree from contesting 

the issue of paternity in these proceedings. Again, we disagree, 

for "'[p]rinciples of collateral estoppel may not be invoked to 

 

 2In making its ruling, the trial court did note that husband 

"had notice of the divorce proceedings but chose not to do 

anything about it." 
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sustain fraud.'" Batrouny, 13 Va. App. at 444, 412 S.E.2d at 723 

(quoting Slagle v. Slagle, 11 Va. App. 341, 348, 398 S.E.2d 346, 

350 (1990)). As we held in Batrouny, "[proof of] fraud 

. . . [prevents] the husband's action [from being] defeated by 

the wife's claim that he is collaterally estopped from 

challenging [the] issue [of paternity] which was tacitly 

determined in the prior divorce action." Id.

 For these reasons, we affirm the trial court's termination 

of the order that husband pay child support to wife. 

 Affirmed.