William H. Jennings, Sr. v Margaret D. Jennings

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.