                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


JOHN DAVID PELLEGRIN
                                               MEMORANDUM OPINION *
v.         Record No. 0765-98-4                    PER CURIAM
                                                NOVEMBER 24, 1998
DIANE LYNN BINGMAN PELLEGRIN


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     J. Howe Brown, Jr., Judge

           (John D. Pellegrin, pro se, on briefs).
           (David M. Levy; Surovell, Jackson, Colten &
           Dugan, on brief), for appellee.



     John David Pellegrin (husband) and Diane Lynn Bingman

Pellegrin (wife) entered into a Property, Custody, and Support

Settlement Agreement, which was affirmed, ratified, and

incorporated into the final divorce decree.      Husband appeals the

decision of the circuit court denying his request to set aside

the final decree of divorce.   He contends that the trial court

erred by (1) failing to find clear and convincing evidence that

wife perpetrated a fraud upon the court; (2) finding that husband

waived his rights to pursue fault-based divorce grounds; (3)

refusing to allow husband to present evidence of financial harm

or to award him attorney's fees and costs; and (4) allowing

certain testimony for impeachment of the parties' daughter.       Upon

reviewing the record and briefs of the parties, we conclude that

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
this appeal is without merit.    Accordingly, we summarily affirm

the decision of the trial court.     See Rule 5A:27.

        As the party seeking to overturn the trial court's decision,

husband bears the burden to prove reversible error.
          "Under familiar principles we view [the]
          evidence and all reasonable inferences in the
          light most favorable to the prevailing party
          below. Where, as here, the court hears the
          evidence ore tenus, its finding is entitled
          to great weight and will not be disturbed on
          appeal unless plainly wrong or without
          evidence to support it."

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668

(1997) (citation omitted).

                                 FRAUD

        "One who advances a cause of action for actual fraud bears

the burden of proving by clear and convincing evidence:     (1) a

false representation, (2) of a material fact, (3) made

intentionally and knowingly, (4) with intent to mislead, (5)

reliance by the party misled, and (6) resulting damage to the

party misled."     Evaluation Research Corp. v. Alequin, 247 Va.

143, 148, 439 S.E.2d 387, 390 (1994).

        Husband and wife separated in August 1989.   Wife admitted

that she began a sexual relationship with Mark Ramee in late

1989.    In her trial testimony, wife denied that she had begun a

sexual relationship with Ramee at the time husband asked her

whether she committed adultery.    Husband asserted that he

discussed adultery with wife four specific times between

September 1989 and February 1990.    Wife could not recall a


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specific number of times, but testified that she recalled several

discussions in 1989.   Wife also testified that, sometime in

January or February 1990, after her daughters found a letter

written to Ramee, she told husband she was "seeing" someone, to

which husband responded that it was her business.   Husband denied

that the conversation took place.

     "The credibility of the witnesses is within the exclusive

province of the finder of fact because it uniquely has the

opportunity to see and hear the witnesses testify and weigh their

credibility based upon their appearance, demeanor and manner of

testifying."    Estes v. Commonwealth, 8 Va. App. 520, 524, 382

S.E.2d 491, 493 (1989).   The trial court noted that husband "has

a tendency . . . to change his position, and to change his

testimony, when it suits him to overturn this Property Settlement

Agreement."    On at least one occasion during the trial, husband

reversed his testimony when the court noted he had previously

testified to the contrary.   Although in previous pleadings

husband stated that he asked wife if she was guilty of adultery

during the period of August, September, and October of 1989, he

asserted for the first time in this action that he continued to

discuss adultery with wife through February 1990.   The trial

court believed wife's testimony and did not believe husband's

testimony concerning when the parties discussed adultery.

     The trial court found that husband also failed to establish

reliance on wife's alleged misrepresentation.   Husband testified



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that he would not have entered into the settlement agreement if

he had known about wife's adultery.     However, husband also

testified that "these conversations with [wife] about the

adultery question came up totally separately" from the

negotiations on the property settlement agreement.    In addition,

wife testified that husband remarked "[i]t's your business" when

she told him that she was seeing someone.    One of the daughters

testified that husband indicated to her that it was "no big deal"

that wife was seeing someone.   While husband testified that he

would not have agreed to any of the terms of the settlement

agreement, the trial court as fact finder was entitled to give

that testimony whatever weight it deemed appropriate.
     Therefore, the trial court did not err in finding that

husband failed to establish by clear and convincing evidence that

wife committed actual extrinsic fraud. 1

                  WAIVER OF FAULT-BASED GROUNDS

     In its ruling from the bench, the trial court stated:
               In the Property Settlement Agreement
          there is a clause saying that the parties are
          relying on financial disclosure.
               It doesn't say anything about them
          relying on other disclosures.
               So I don't think the conversations,
     1
      In her brief, wife objected to the inclusion in the
appendix of certain exhibits not admitted into evidence. Husband
apparently concedes that these exhibits were not admitted as part
of the record but argues that a "good cause exception" under
Rules 5A:18 and 5A:25(h) authorizes this Court to consider these
exhibits. We find husband's argument unpersuasive. Rule 5A:7
governs what constitutes the record on appeal. As the challenged
exhibits are not part of the record on appeal, we do not consider
them.




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          whenever they took place, and I think they
          took place before any adultery was happening,
          but they didn't have anything to do with the
          Property Settlement Agreement, in any event.
               And he said he never talked about it
          with the lawyers, never talked about adultery
          with the lawyers, at all, as to what effect
          it might or might not have.


Husband characterizes this statement as a finding by the trial

court that he waived his right to pursue his remedies for wife's

alleged adultery.   We disagree.   Instead, the court's remarks set

out additional evidence it considered before finding that there

was insufficient evidence of reliance by husband on any

representations made by wife.   As noted above, husband testified

that the settlement negotiations were separate from any

discussions concerning adultery by wife.   Therefore, we find

husband's argument to be without merit.

                          FINANCIAL HARM

     The conduct of the trial and the admission of evidence is a

matter left to the discretion of the trial court.    See Cunningham

v. Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986).

The trial court noted that, if it set aside the parties' final

decree, the parties would have an opportunity to present evidence

on financial matters at a separate hearing.   We find no error in

the trial court's decision to postpone any consideration of

husband's evidence of financial harm.

     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion.    See Graves v. Graves, 4 Va.



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App. 326, 333, 357 S.E.2d 554, 558 (1987).       Because we find that

the trial court did not err in concluding that husband failed to

establish fraud, we find no abuse of discretion in its decision

not to award husband attorney's fees and costs.

                        IMPERMISSIBLE EVIDENCE

     At the hearing below, the parties agreed to the admission,

for purposes of impeachment, of the statement to which husband

now objects.   None of the objections which husband now raises

were made at the time the statement was admitted.      "In order to

be considered on appeal, an objection must be timely made and the

grounds stated with specificity.    Rule 5A:18.    To be timely, an

objection must be made when the occasion arises -- at the time

the evidence is offered or the statement made."       Marlowe v.

Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)

(citation omitted).   The record does not reflect any reason to

invoke the good cause or ends of justice exceptions to Rule

5A:18.
                WIFE'S REQUEST FOR ATTORNEY'S FEES

     Wife seeks an award of her appellate attorney's fees.         We

find an award is warranted under the provisions of the parties'

settlement agreement.    See Pellegrin v. Pellegrin, No. 0143-96-4

(Va. Ct. App. Oct. 29, 1996).    We remand this case to the circuit

court for a determination of wife's appellate attorney's fees.

     Accordingly, the decision of the circuit court is summarily

affirmed.




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        Affirmed and remanded.




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