                     COURT OF APPEALS OF VIRGINIA


Present: Judges Barrow, * Koontz and Senior Judge Duff
Argued at Alexandria, Virginia


PETER J. ZDANIS

v.         Record Nos. 1078-94-4 and      MEMORANDUM OPINION** BY
                       1689-94-4          JUDGE BERNARD G. BARROW
SUSAN (ZDANIS) DEELY                            MAY 9, 1995


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         J. Howe Brown, Judge
            Daniel B. Clark for appellant.

          Alan W. Brick (Kaufmann & Brick, on brief), for
     appellee.



     In this domestic relations appeal, we hold that the trial

court erred in sustaining the wife's demurrer to the husband's

amended bill of complaint.

     A demurrer raises a question of "the legal sufficiency of a

pleading, and does not involve a consideration of disputed

facts."     Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va.

206, 209, 375 S.E.2d 753, 755 (1989).    We "admit[] the truth of

all material facts properly pleaded," including "those expressly

alleged, those which fairly can be viewed as impliedly alleged,

and those which may be fairly and justly inferred from the facts

alleged."     Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717,

     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the panel members joined in the opinion.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
717 (1988).

     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 .   A judgment obtained by

"extrinsic," as opposed to "intrinsic," fraud is subject to

collateral attack.      Peet v. Peet, 16 Va. App. 323, 326-27, 429

S.E.2d 487, 490 (1993).      Extrinsic fraud is "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);

see O'Neill v. Cole, 194 Va. 50, 56-57, 72 S.E.2d 382, 386 (1952)

(finding claim of extrinsic fraud where father's false statements

to his minor daughter about her rights under her uncle's will

induced her to deed over property to him and "precluded her from

presenting her true case and rights to the court for

adjudication"; claim otherwise barred by laches).

     In this case, the core of the husband's claim is that his

wife told him that the attorney she hired would represent both of
                   2
their interests.       Further, he alleges that because of the
     1
      Formerly, subsection C; amended 1993.
     2
      The husband's complaint also alleges that when he inquired
about the provision continuing spousal support after remarriage,
the wife replied "that the attorney had said that it was required
to be in a separation agreement." This allegation cannot be the
basis for a claim of fraud because it is not, strictly, false.
Post-marriage spousal support is not required in a separation
agreement; however, if the parties wish support to continue after
remarriage, they are required expressly to provide for it in
their separation agreement. Miller v. Hawkins, 14 Va. App. 192,
197, 415 S.E.2d 861, 864 (1992). Thus, the wife's statement,
while open to several interpretations, was not a
misrepresentation.


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special relationship of trust between him and his wife, he relied

on this statement and did not obtain his own legal counsel. 3    We

disagree with the trial court's finding that the husband does not

present a claim of extrinsic fraud.   The husband's allegation

that the wife's misrepresentation "precluded [him] from

presenting his true case and rights to the court," states a prima

facie claim of extrinsic fraud.   O'Neill, 194 Va. at 57, 72

S.E.2d at 386.
     Ultimately, whether the requirements of Code § 8.01-428(D) 4

can be proved at trial is a matter for the fact finder; however,

the pleading is sufficient to withstand a demurrer.   Therefore,

we reverse the trial court's order and remand the matter for

further proceedings.

                                         Reversed and remanded.


     3
      Whether such a "special relationship" of trust exists
between a divorcing husband and wife is a matter of fact for the
trial court to determine. Compare Webb v. Webb, 16 Va. App. 486,
492-93, 431 S.E.2d 55, 59-60 (1993) with Drewry v. Drewry, 8 Va.
App. 460, 470, 383 S.E.2d 12, 17 (1989).
     4
      The elements of this independent 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).




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