COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Coleman∗

Argued at Richmond, Virginia 

HENRY M. ELLETT 

 OPINION BY 

v. Record No. 0824-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 13, 2001 

CYNTHIA H. ELLETT 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 J.W. Harman, Jr. (Harman & Harman, P.C., on 

brief), for appellant. 

 Kimberlee Harris Ramsey (Robert J. Kloeti; 

Florance, Gordon and Brown, P.C., on brief), 

for appellee. 

 ∗

 Judge Coleman participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

December 31, 2000 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401. 

 Appellant, Henry M. Ellett ("husband"), contends on appeal 

that the trial court erred in sustaining the demurrer raised by 

the appellee, Cynthia H. Ellett ("wife"), to husband's bill of 

complaint asking the court to declare the parties' separation 

agreement null and void. For the reasons that follow, we affirm. 

 The parties were married on December 5, 1992 and separated 

on or about November 17, 1996. On March 29, 1997, the parties 

executed a property settlement agreement, which was incorporated 

into a final decree of divorce on April 20, 1998. Husband sought 

to have the agreement declared null and void in a bill of 
complaint filed on August 10, 1999, and in a subsequent amended 

bill of complaint filed December 21, 1999. The trial court 

sustained wife's demurrer to both the initial bill and the 

amended bill of complaint. 

 On appeal, we will sustain the demurrer if the husband's 

complaint, considered in the light most favorable to the husband, 

fails to state a valid cause of action. McDermott v. Reynolds, 

260 Va. 98, 100, 530 S.E.2d 902, 903 (2000). In conducting our 

review, we consider as true the facts alleged in husband's 

complaint as well as the reasonable inferences that can be drawn 

from such facts. Id.

 In order to challenge the validity of a separation agreement 

that has been incorporated into a divorce decree, the challenge 

must be brought within twenty-one days after the entry of the 

divorce decree. Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 

757-58 (1987). After the passage of twenty-one days from the 

entry of a judgment, the judgment becomes final and conclusive, 

absent a perfected appeal. Rook, 233 Va. at 95, 353 S.E.2d at 

758; see also Golderos v. Golderos, 169 Va. 496, 501-02, 194 S.E. 

706, 707-08 (1938). Accordingly, any challenge to the agreement 

may be made only upon grounds sufficient to sustain a challenge 

to the divorce decree itself. See Higgins v. McFarland, 196 Va. 

889, 896-97, 86 S.E.2d 168, 173 (1955); Wallihan v. Hughes, 196 

Va. 117, 125-31, 82 S.E.2d 553, 559-62 (1954); Greschler v. 

Greschler, 414 N.E.2d 694, 699 (N.Y. 1980). 

 A final and conclusive judgment that is void, however, may 

be attacked in any court, at any time, directly or collaterally. 

Rook, 233 Va. at 95, 353 S.E.2d at 758. A void decree is one 

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that has been obtained by extrinsic or collateral fraud or was 

entered by a court that did not have jurisdiction over the 

subject matter or the parties. Id. The husband does not claim 

that the court was without jurisdiction. We thus confine our 

inquiry to whether the allegations in the bill of complaint are 

sufficient to establish a claim of extrinsic fraud. 

 Extrinsic fraud consists of "conduct which prevents a fair 

submission of the controversy to the court." Jones v. Willard, 

224 Va. 602, 607, 299 S.E.2d 504, 508 (1983). Extrinsic fraud 

does not include fraud relating to a "matter on which the 

judgment or decree was rendered," or involving an "act or 

testimony the truth of which was, or might have been, in issue in 

the proceeding before the court which resulted in the judgment 

that is thus assailed." Taylor v. Taylor, 159 Va. 338, 344, 165 

S.E. 414, 415 (1932); see also Rowe v. Big Sandy Coal Corp., 197 

Va. 136, 143, 87 S.E.2d 763, 767-68 (1955); McClung v. Folks, 126 

Va. 259, 269, 101 S.E. 345, 348 (1919); In re Miller, 902 P.2d 

1019, 1022-23 (Mont. 1995). Rather, the fraud must be 

"'extrinsic or collateral to the questions examined and 

determined in the action.'" McClung, 126 Va. at 269, 101 S.E. at 

348 (quoting United States v. Throckmorton, 98 U.S. 61, 66 

(1878)). Extrinsic fraud includes such circumstances as bribery 

of a judge or juror, In re Miller, 902 P.2d at 1022; fabrication 

of evidence by an attorney, id.; preventing another party's 

witness from appearing, Powell v. Commonwealth, 133 Va. 741, 754, 

112 S.E. 657, 661 (1922); intentionally failing to join a 

necessary party, Gulfstream Bldg. Associates, Inc. v. Britt, 239 

Va. 178, 184, 387 S.E.2d 488, 492 (1990); or misleading another 

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party into thinking a continuance had been granted, National 

Airlines, Inc. v. Shea, 223 Va. 578, 583, 292 S.E.2d 308, 311 

(1982). 

 To support his claim of extrinsic fraud, the husband 

alleged, in substance, that: (1) before the parties entered the 

agreement, wife misrepresented the true status of the family's 

bills and accounts and thereby prevented his becoming informed of 

these accounts; (2) wife discouraged him from obtaining counsel 

during the time the agreement was negotiated and executed; (3) 

husband executed the agreement under duress and undue influence 

exercised by wife; (4) the agreement's provisions with respect to 

property division, child and spousal support, and child custody 

are unconscionable; and (5) during negotiations, wife 

misrepresented her intent to abide by the terms of the agreement, 

thereby inducing him to execute it, and wife later breached the 

agreement. 

 The facts alleged do not support a claim of extrinsic fraud. 

Each of husband's challenges pertains to matters that could have 

been raised during the divorce proceeding. See Taylor, 159 Va. 

at 344, 165 S.E. at 415. The parties placed the validity of the 

agreement at issue by asking the court to incorporate the 

agreement into the final divorce decree. Claims pertaining to 

fraud in the procurement of the agreement, and claims based on 

duress, undue influence and unconscionability, all involve 

challenges to the agreement that could have been raised during 

the divorce proceeding, and do not involve "extrinsic" fraud, or 

fraud upon the court. See Wallihan, 196 Va. at 130-31, 82 S.E.2d 

at 561-62 ("When the parties are before a court of competent 

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jurisdiction and a separation agreement is approved, confirmed 

and decreed upon, its validity is by that judgment rendered res

judicata between the parties. . . . [The wife] may not now 'go 

behind the judgment of the court' and say that the contract was 

secured through fraud." (citation omitted); holding that such a 

challenge did not involve extrinsic fraud); see also Cerniglia v. 

Cerniglia, 679 So.2d 1160, 1163 (Fla. 1996) (where wife 

challenged property settlement agreement incorporated into 

divorce decree on grounds of involuntariness, coercion, duress, 

enticement and fraudulent financial disclosure, court held these 

allegations constituted intrinsic fraud, and were insufficient to 

void a final decree); Spaulding v. Spaulding, 561 P.2d 420 (Kan. 

1977) (where husband alleged he entered separation agreement 

involuntarily and under duress, court found this did not 

establish the sort of fraud necessary to void a divorce decree); 

Van Sickle v. Harmeyer, 172 Ill. App. 218 (1912) (where wife 

challenged settlement agreement on ground husband induced wife to 

enter agreement based on promises he had no intention of 

performing, court held this was insufficient to void final 

divorce decree); In re Miller, 902 P.2d at 1022 ("[F]raud between 

the parties . . . is not fraud upon the court."). 

 Because husband failed to allege facts sufficient to sustain 

a claim of extrinsic fraud, we affirm the trial court's decision 

to sustain the wife's demurrer. 

 Affirmed. 

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