COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

WILLIAM H. JENNINGS, SR. 

 OPINION BY 

v. Record No. 1143-97-1 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 10, 1998 

MARGARET D. JENNINGS 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Debra C. Albiston (Cynthia E. Cordle; 

Kaufman & Canoles, on briefs), for appellant. 

 Moody E. Stallings, Jr. (Kevin E. 

Martingayle; Stallings & Richardson, P.C., on 

brief), for appellee. 

 William H. Jennings, Sr., appeals the trial court's refusal 

to vacate the parties' final decree of divorce. He contends that 

Margaret D. Jennings perpetrated a fraud upon the court by filing 

a false affidavit in which she alleged that she had exercised due 

diligence in seeking to locate him. We affirm the judgment of 

the trial court. 

 The parties were married on June 30, 1936. Ms. Jennings 

sued for divorce in November, 1990. Seeking constructive service 

of process upon Mr. Jennings by order of publication, she 

executed an affidavit providing Mr. Jennings' last known post 

office address, attesting that he was not a resident of Virginia, 

and stating that "due diligence" had failed to ascertain his 

whereabouts. Service of process on Mr. Jennings by order of 

publication was completed. A final decree of divorce a vinculo
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matrimonii was entered on February 11, 1991. 

 On June 19, 1995, Mr. Jennings filed a bill of complaint 

seeking to vacate the divorce decree on the ground that it had 

been obtained by fraud. See Code § 8.01-428(D). The issue on 

appeal is whether the trial court erred in ruling that Mr. 

Jennings failed to prove that Ms. Jennings perpetrated a fraud 

upon the court. 

 A court may "entertain at any time an independent 

action . . . to set aside a judgment or decree for fraud upon the 

court." Code § 8.01-428(D).1

 Because "judicial proceedings must 

have a certainty of result, and a high degree of finality must 

attach to judgments," we construe the language contained in Code 

§ 8.01-428(D) narrowly. Byrum v. Lowe & Gordon, Ltd., 225 Va. 

362, 365, 302 S.E.2d 46, 48 (1983) (citation omitted). 

 In seeking to set aside the court's decree, Mr. Jennings 

bore the burden of proving fraud by clear and convincing 

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

 

 1The necessary elements of this action in equity are: 

 "(1) a judgment which ought not, in equity 

and good conscience, to be enforced; (2) a 

good defense to the alleged cause of action 

on which the judgment is founded; (3) fraud, 

accident, or mistake which prevented the 

defendant in the judgment from obtaining the 

benefit of his defense; (4) the absence of 

fault or negligence on the part of the 

defendant; and (5) the absence of any 

adequate remedy at law." 

Charles v. Precision Tune, Inc., 243 Va. 313, 317-18, 414 S.E.2d 

831, 833 (1992) (citation omitted). 
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S.E.2d 721, 723 (1991). "Clear and convincing evidence is that 

degree of proof which will produce in the mind of the trier of 

facts a firm belief or conviction concerning the allegations 

sought to be established." Ashmore v. Herbie Morewitz, Inc., 252 

Va. 141, 147, 475 S.E.2d 271, 275 (1996), cert. denied, 117 

S. Ct. 1254 (1997) (citation omitted). See Aviles v. Aviles, 14 

Va. App. 360, 366, 416 S.E.2d 716, 719 (1992). 

 Ms. Jennings testified that during the pendency of the 

divorce suit, she did not know Mr. Jennings' whereabouts and 

could not communicate with him. In her efforts to ascertain his 

whereabouts, she contacted their accountant, Mr. Jennings' former 

landlord, a probation office, their two grown children, and 

Virginia Power, all to no avail. Although the parties' son, 

William Jennings, Jr., sent mail to Mr. Jennings, he testified 

that at his father's direction, he refused to give his father's 

address to his mother. Ms. Jennings received multiple telephone 

calls from creditors and former employees looking for Mr. 

Jennings. They were unable to tell her his location. 

 The commissioner in chancery reported that Ms. Jennings had 

exercised due diligence in attempting to locate Mr. Jennings. 

The trial court sustained that finding and held that Mr. Jennings 

had failed to prove by clear and convincing evidence that Ms. 

Jennings had perpetrated a fraud on the court. On review, we 

must affirm the trial court's judgment unless it is plainly wrong 

or without evidence to support it. See McLaughlin v. McLaughlin, 
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2 Va. App. 463, 466-67, 346 S.E.2d 535, 536 (1986). 

 Mr. Jennings relies upon our decision in Khanna v. Khanna, 

18 Va. App. 356, 443 S.E.2d 924 (1994). However, the facts and 

circumstances in Khanna differ from those presented here. In 

Khanna, the wife separated from her husband and took refuge in a 

shelter for victims of domestic violence. Id. at 357, 443 S.E.2d 

at 925. The husband filed a criminal complaint against his wife, 

and initiated a suit to annul their marriage. Id. He obtained 

constructive service of process on his wife in the annulment 

suit, averring that he had exercised due diligence in attempting 

to locate her, without effect. Id. Although the wife was not 

permitted to disclose the location of the shelter, she continued 

during the suit to have contact with the husband. Id. at 358, 

443 S.E.2d at 925-26. Her attorney spoke with the husband, gave 

him her business card, and told him that he could communicate 

with his wife in writing through the attorney's office. Id. at 

358, 443 S.E.2d at 926. We vacated the annulment decree, holding 

that the husband had failed to exercise the diligence required 

for service of process by publication. Id. at 359, 443 S.E.2d at 

926. 

 Mr. Jennings refused to tell his wife where he was residing 

and prevented her being able to find him. After he left the 

marital home in January, 1990, he hid from Ms. Jennings and from 

his creditors. He had no telephone service, no apartment lease, 

no utilities or "anything in [his] name . . . for the simple 
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reason that [he] was involved in [a] . . . criminal case." He 

argues that Ms. Jennings did not tell him of the divorce suit 

when he telephoned her in February, 1991. However, this call 

occurred after Ms. Jennings had executed and filed her affidavit 

of due diligence and after completion of the order of 

publication. Mr. Jennings admitted that he instructed their 

children, his attorney, and his accountant not to tell Ms. 

Jennings his whereabouts. 

 The record demonstrates that in preparation for the divorce 

suit Ms. Jennings attempted repeatedly and unsuccessfully to 

locate her husband, to no avail. We cannot state that the trial 

court erred in ruling that Mr. Jennings failed to prove by clear 

and convincing evidence that by reporting these efforts under 

oath, Ms. Jennings perpetrated a fraud on the court. Therefore, 

we affirm the judgment of the trial court. 

 Affirmed.