                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia


LAURA T. PRICE
                                         MEMORANDUM OPINION * BY
v.   Record No. 3266-01-2             JUDGE JEAN HARRISON CLEMENTS
                                            OCTOBER 22, 2002
LEON S. PRICE


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Randall G. Johnson, Judge

          John M. Holloway, III (Kristina E. Beard;
          Angela L. Jenkins; Pamela Russell; Hunton &
          Williams, on brief), for appellant.

          No brief or argument for appellee.


     Laura T. Price (wife) appeals from an order denying her

request to have the final decree of divorce dissolving her

marriage to Leon S. Price (husband) set aside.   On appeal, wife

contends the trial court erred (1) in rejecting her claim that the

written waiver of notice and service of process she signed in the

divorce action was procured by fraud or duress, (2) in upholding

the divorce decree despite finding the divorce had been granted to

husband on the basis of his perjured testimony, and (3) in

refusing to permit wife to amend her pleadings to request




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
attorney's fees. 1   In addition, wife seeks an award of appellate

attorney's fees.     Finding no error, we affirm the judgment of the

trial court and deny wife's request for appellate attorney's fees.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.    "We view the evidence and all

reasonable inferences fairly deducible therefrom in the light most

favorable to husband, the party prevailing below."    Walson v.

Walson, 37 Va. App. 208, 211, 556 S.E.2d 53, 54 (2001).

                                   I.

     Wife first contends the trial court erred in finding, despite

her uncontradicted, unimpeached testimony to the contrary, that

the written waiver of notice and service of process she signed in

the divorce action was not procured by fraud or duress.    We

disagree.

     The evidence established that, on September 20, 2000, a week

after husband filed his bill of complaint for divorce, wife

signed, under oath, a one-page waiver that was in the form of a

pleading, with the caption of the divorce action at the top.

According to the terms of the notarized waiver, wife waived



     1
       For purposes of this appeal, we have, in identifying the
issues to be considered, consolidated some of wife's
interrelated questions presented.

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"further notice of entry of the taking of depositions, and the

entry of decrees [in the case], and of the service of process of

the Bill of Complaint," as well as "the time limits imposed for

the taking of depositions to be used as evidence in the [case],

and the twenty-one day time period allowed for the filing of an

answer and cross-bill."

     At the evidentiary hearing on wife's request to have the

decree of divorce set aside, wife testified regarding several

instances during the latter part of the marriage in which she had

been a victim of husband's violence and abuse.    She obtained, she

testified, two permanent protective orders against husband and two

warrants charging him with assault and battery.

     Wife also testified she and husband had been in court on

several occasions regarding the issues of custody, visitation, and

child and spousal support.   According to wife, she was represented

by an attorney in the visitation proceeding.

     Wife further testified that, when husband brought the waiver

for her to sign, he told her "it was a paper he needed her to sign

so that he could talk to an attorney about a divorce."   She

testified that, although she was suspicious of his actions, she

did not know or understand what the document was.   She did not,

she testified, "recognize the document as a pleading in an action

filed with the court."    She refused to sign the waiver at first,

she testified, but then husband "started harassing and threatening

her," showing up unexpectedly at her house and demanding she sign

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the waiver.    Finally, she testified, after he came to her house,

destroyed things in the kitchen, and damaged the house, she

"became so frightened that she gave him the waiver on September

20, 2000."    Husband, although present, did not testify at the

hearing.

     "Where, as here, a court hears evidence ore tenus, its

findings are entitled to the weight of a jury verdict, and they

will not be disturbed on appeal unless plainly wrong or without

evidence to support them."    Gray v. Gray, 228 Va. 696, 699, 324

S.E.2d 677, 679 (1985).    Furthermore, it is well settled that "the

trier of fact ascertains a witness' credibility, determines the

weight to be given to their testimony, and has the discretion to

accept or reject any of the witness' testimony."    Anderson v.

Anderson, 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999).    "This

Court will not substitute its judgment for the trial court's

determination . . . ."    Parish v. Spaulding, 26 Va. App. 566, 575,

496 S.E.2d 91, 95 (1998).

             However, a trial court's conclusion based on
             evidence that is "not in material conflict"
             does not have this binding effect on appeal.
             Durrette v. Durrette, 223 Va. 328, 332, 288
             S.E.2d 432, 434 (1982); Clark v. Clark, 209
             Va. 390, 395, 164 S.E.2d 685, 689 (1968).
             The trier of fact . . . "may not arbitrarily
             disregard uncontradicted evidence of
             unimpeached witnesses which is not inherently
             incredible and not inconsistent with facts in




                                 - 4 -
          the record." Cheatham v. Gregory, 227 Va. 1,
          4, 313 S.E.2d 135, 138 (1992).

Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985).

     Here, the trial court rejected as incredible wife's testimony

that she did not understand, in signing the waiver, what she was

signing and that she signed the waiver under duress.   In making

that determination, the trial court stated as follows:

               With regard to Ms. Price not
          understanding what she was signing, the court
          simply does not believe her. The evidence
          shows that between July 1999 and March 2000,
          Ms. Price had sworn out at least two criminal
          warrants against Mr. Price, had been to
          juvenile court in Mecklenburg County to
          obtain child custody and support, and had
          returned to juvenile court with a lawyer to
          have a visitation order entered. She was
          well acquainted with the court system and
          with legal pleadings. She knew what she was
          signing.

               The court also does not believe that
          Ms. Price signed the waiver as a result of
          threats, force, intimidation, or duress.
          When Mr. Price assaulted her, she filed
          criminal charges. When she did not want to
          be harassed by Mr. Price, she had a
          protective order entered against him. When
          she felt she was entitled to child support,
          she initiated appropriate proceedings in
          juvenile court. She hired a lawyer to
          represent her on the question of Mr. Price's
          visitation with the children. She was not at
          all intimidated or threatened by Mr. Price.
          She did not sign the waiver against her will.

     In other words, the trial court concluded that wife's

testimony showing (1) her obvious willingness to utilize the legal

system to protect her rights, (2) her considerable involvement

with the legal system, and (3) her assertive responses to

                              - 5 -
husband's violence and abuse in the past belied her testimony that

she did not know what she was doing in signing the waiver and that

she signed the waiver because of husband's abuse.     We agree with

the trial court's assessment that wife's testimony was

inconsistent.    Accordingly, the trial court was not obliged, under

these circumstances, to accept wife's uncontradicted testimony.

     In addition, we cannot say, based on our review of the

record, that the trial court's findings were plainly wrong or

without credible evidence to support them.     Accordingly, we affirm

the trial court's determination that the written waiver of notice

and service of process filed in the divorce action was not

procured by fraud or duress.

                                   II.

     Wife next contends the trial court erred in refusing to set

aside the final decree of divorce despite finding husband's

testimony that the parties had lived separate and apart for more

than a year was perjured.      Husband's perjured testimony, wife

argues, constituted extrinsic fraud, thus, rendering the divorce

decree void.    We disagree.

     Following the hearing on wife's request to have the divorce

decree set aside, the trial court found that, in testifying

husband and wife had lived separate and apart since August 1999,

"Mr. Price, and possibly his divorce witness, committed perjury in

this court."    The trial court ruled, however, that it was unable

to disturb the final decree of divorce on that basis because

                                  - 6 -
perjured testimony constitutes intrinsic, rather than extrinsic,

fraud and, once a judgment has become final, it may no longer be

set aside for intrinsic fraud.

     We review the trial court's legal conclusion de novo.     See

Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102

(2001).   It is well established that "mere perjury or false

swearing alone is not ground for equitable relief, since it is

regarded as an intrinsic fraud."    O'Neill v. Cole, 194 Va. 50, 56,

72 S.E.2d 382, 385 (1952).    "Fraud warranting . . . equitable

relief . . . must be extrinsic or collateral to the issues

determined in the original suit . . . ."   Rowe v. Big Sandy Coal

Corp., 197 Va. 136, 143, 87 S.E.2d 763, 768 (1955).   Indeed, as

the Supreme Court observed in Jones v. Willard, 224 Va. 602, 607,

299 S.E.2d 504, 508 (1983):

                The judgment of a court, procured by
           intrinsic fraud, i.e., by perjury, forged
           documents, or other incidents of trial
           related to issues material to the judgment,
           is voidable by direct attack at any time
           before the judgment becomes final; the
           judgment of a court, procured by extrinsic
           fraud, i.e., by conduct which prevents a fair
           submission of the controversy to the court,
           is void and subject to attack, direct or
           collateral, at any time.

"Extrinsic fraud is fraud which occurs outside the judicial

process . . . ."   F.E. v. G.F.M., 35 Va. App. 648, 659, 547 S.E.2d

531, 536 (2001).

     Applying these principles to the instant case, we hold that

the final decree of divorce, the entry of which was based upon

                                 - 7 -
husband's perjured testimony regarding the parties' separation,

was procured by intrinsic fraud.   Accordingly, we affirm the trial

court's decision not to set the decree aside.

                                III.

     Following wife's direct testimony at the evidentiary hearing,

her attorney requested leave to amend the bill of complaint to

request attorney's fees.   The trial court noted there were no

pleadings in the record requesting such an amendment.   Wife's

attorney stated that she had brought the necessary written motion

and order with her.   The trial court denied the motion.

     Whether to grant an amendment to a pleading is a decision

resting within the sound discretion of the trial court.    See

Roberts v. Roberts, 223 Va. 736, 742, 292 S.E.2d 370, 373 (1982).

A refusal to grant such an amendment will not be reversed on

appeal absent an abuse of that discretion.   See id.

     Here, wife waited until she had concluded her direct

testimony before advising the court and husband of her desire to

seek attorney's fees.   Such notice, we conclude, was insufficient

to permit husband effective cross-examination on the issue of

wife's attorney's fees or to prepare and present evidence in

opposition thereto.   Accordingly, we hold the trial court did not

abuse its discretion in denying wife's motion.

     Wife's appeal being without merit, we deny her request for

appellate attorney's fees.   See O'Loughlin v. O'Loughlin, 23

Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

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For these reasons, we affirm the judgment of the trial court.

                                                    Affirmed.




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