                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, O’Brien and Senior Judge Annunziata
              Argued at Alexandria, Virginia
UNPUBLISHED




              TAHMINA BEGUM
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 1108-18-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                                 APRIL 9, 2019
              SHAHEEN M. SHAKHAWAT


                                  FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                          Gaylord L. Finch, Jr., Judge Designate

                               Elizabeth Tuomey (Tuomey Law Firm, PLLC, on briefs), for
                               appellant.

                               Adam D. Elfenbein (Elfenbein Law, PLLC, on brief), for appellee.


                     Shaheen Shakhawat (husband) obtained a divorce in March 2017 from Tahmina Begum

              (wife), serving her by an order of publication. Wife moved to set aside the decree in September

              2017, asserting that husband had used a false affidavit to get the order of publication. The trial

              court denied wife’s motion. Wife contends on appeal that the trial court used the wrong standard

              in determining that husband had not committed fraud on the court and that the court further erred

              in not setting aside the divorce decree. We affirm the trial court’s ruling.

                                                       BACKGROUND1

                     The parties were married in Bangladesh in October 2009 and separated in Arlington,

              Virginia in October 2014. Wife moved to Philadelphia to attend Temple University in January

              2016. The Arlington County Juvenile and Domestic Relations District Court ordered husband to


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        We view the facts in the light most favorable to husband because he was the prevailing
              party in the trial court. See Monds v. Monds, 68 Va. App. 674, 677 (2018).
pay wife $350 per month as support for the parties’ child. The orders from both March and July

2016 showed wife’s address in Philadelphia.

       Husband filed for divorce on November 15, 2016, and stated that wife resided in Atlantic

City, New Jersey. On January 10, 2017, husband filed an affidavit with the circuit court for an

order of publication, alleging that wife “cannot be found, and that diligence has been used

without effect to ascertain [her] location.” The affidavit stated wife’s last known address was in

Ventnor City, New Jersey. A notice of the pending divorce was published in the Washington

Times on four successive dates between January 19, 2017, and February 9, 2017. The copy of

the order of publication that the circuit court sent to wife at the Ventnor City, New Jersey address

was returned on January 24, 2017, marked “return to sender – attempted – not known – unable to

forward.” Wife did not respond to the bill of complaint, and the final decree was entered on

March 22, 2017. Wife was awarded “sole legal custody and primary custody” of their child, and

husband was allowed “visitation as agreed by the parties.” The decree ordered husband to pay

child support of $350 per month.

       Wife moved to set aside the decree on September 27, 2017. The trial court held a hearing

on the motion on May 30, 2018, at which both wife and husband testified.

       Husband testified that he had told wife about the pending divorce. He said that she had a

“bad attitude,” thought he was joking, and had refused to give him her address. He believed that

wife was living in New Jersey with relatives because she had told him she could not find child

care in Philadelphia. According to husband, wife’s brother-in-law gave him the New Jersey

address that was on the affidavit. Husband testified that wife moved to set aside the divorce

decree after she learned that he had remarried on July 4, 2017. He also pointed out that his

immigration status would be affected if he were found guilty of fraud.




                                               -2-
        Wife denied husband had told her about the divorce, even though they had communicated

about their son while divorce proceedings were pending. She said that she only learned of the

divorce on July 25, 2017, when husband sent her an email in response to her plan to initiate

custody proceedings for their child in Philadelphia. She further contended he knew her address

because he had been to her residence in Philadelphia in December 2016 and January, February,

and March 2017. In support of her argument in the trial court, wife presented her lease for the

apartment where she had lived in Philadelphia from January 2016 through January 2017 and a

certificate from the preschool the parties’ son had attended during the 2016-2017 school year.

According to wife, the residence at the New Jersey address that husband provided in the affidavit

had been owned by a member of her family, but she had not lived there, and she denied telling

her family not to give husband her address. Finally, she acknowledged she had been found

guilty of assault and battery of husband in 2014, but had been given a deferred disposition.

        In the parties’ written final arguments submitted to the trial court, husband argued that

wife was not entitled to relief under Code § 8.01-428(D) because she had not met the required

five elements set out in Jennings v. Jennings, 26 Va. App. 530, 533 n.1 (1998). Wife argued that

the Jennings analysis did not apply to a case of extrinsic fraud, but that if it did, she satisfied the

elements.

        The trial court disagreed with wife and ruled that she had not met her burden to prove

fraud by clear and convincing evidence. Referring to the five elements cited in Jennings, the

court stated elements one, three, and four were “a matter of credibility.” The judge also

expressed his concern that voiding the decree would invalidate husband’s remarriage and noted

wife had not been prejudiced by the decree because she had received sole custody of their child

and child support.

        This appeal follows.

                                                  -3-
                                           ANALYSIS

                              Trial court did not use wrong standard

       Wife first argues that the trial court applied the wrong standard in determining that

husband had not committed fraud on the court by filing an allegedly false affidavit. Wife’s

motion to set aside the divorce decree in the instant action constituted an independent action

under Code § 8.01-428(D). The statute provides as follows:

               This section does not limit the power of the court to entertain at
               any time an independent action to relieve a party from any
               judgment or proceeding, or to grant relief to a defendant not served
               with process as provided in § 8.01-322, or to set aside a judgment
               or decree for fraud upon the court.

Wife’s reliance on this Court’s decision in Khanna v. Khanna, 18 Va. App. 356 (1994), to

support her contention that the wrong standard was applied here is misplaced. In Khanna, the

wife challenged the trial court’s decision pursuant to Code § 8.01-428, but the elements required

to be proven under Code § 8.01-428(D) were not discussed, and the specific elements of the

statute at issue on appeal are not apparent from the Khanna opinion.

       As discussed in Charles v. Precision Tune, Inc., 243 Va. 313, 317 (1992), the Virginia

Supreme Court notes that Code § 8.01-428(D)2 “does not create any new rights or remedies, but

merely preserves a court’s inherent equity power to entertain an independent action.” In

addition, the Charles decision sets out five elements to be considered in assessing whether to

grant relief based on a claim of fraud:

               (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


       2
         At the time Charles was decided, the pertinent subsection of Code § 8.01-428 was
designated as “C.” The statute was later amended, changing “C” to “D.” See 1993 Va. Acts, ch.
951.
                                              -4-
               part of the defendant; and (5) the absence of any adequate remedy
               at law.

Id. at 317-18 (quoting National Surety Co. of New York v. Bank of Humboldt, 120 F. 593, 599

(8th Cir. 1903)); see also Virginia Polytechnic Institute v. Prosper Financial, 284 Va. 474, 483

(2012) (holding that a party must prove each element when seeking to set aside a default

judgment under Code § 8.01-428(D)). These same factors were cited in Jennings as “necessary

elements” for an action under Code § 8.01-428(D), Jennings, 26 Va. App. at 533 n.1, and were

relied on by the trial court in this case. Accordingly, we conclude the trial court applied the

correct standard in ruling on wife’s motion to set aside the decree.

                       Trial court did not err in finding no evidence of fraud

       Wife also contends that the trial court erred in failing to find that she had proved husband

committed fraud on the court by filing a false affidavit to obtain service by publication. Wife

was required to prove her claim by clear and convincing evidence. Id. at 533. “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.” Id. (quoting

Ashmore v. Herbie Morewitz, Inc., 252 Va. 141, 147 (1996)). We must affirm the judgment of

the trial court unless it is plainly wrong or without evidence to support it. See id.

       In support of her contention that husband knew her address when he filed for divorce,

wife points to her “uncontroverted documentary evidence,” which she argues showed his

knowledge and proved husband committed fraud on the court by presenting a false affidavit for

the order of publication. In addition to wife’s documentary evidence, the trial court heard

testimony from the parties. Wife testified that husband knew her address in Philadelphia because

he had been to her apartment there and that he never told her about the pending divorce.

Husband testified to the contrary that he had informed wife of the divorce proceedings and that

she had refused to give him her address. He further explained he believed wife was living in
                                              -5-
New Jersey with relatives because she had told him she was unable to find child care in

Philadelphia. Husband pointed out that wife’s brother-in-law gave him the New Jersey address

that he put in the affidavit. Husband added in his testimony that wife was irritated that he had

remarried and did not move to set aside the decree until after she learned of the remarriage.

       The trial court was entitled to reject or accept each party’s testimony, in whole or in part.

See Parham v. Commonwealth, 64 Va. App. 560, 565 (2015) (“[D]etermining the credibility of

the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier

of fact.”). In finding that wife had not met her burden of proving fraud, the trial court stated that

elements one, three, and four were “a matter of credibility.”3 Thus, it follows that the trial court

accepted husband’s testimony as more credible than wife’s testimony. Similarly, the court

rejected wife’s assertion that husband did not use diligence in locating her. See Dennis v. Jones,

240 Va. 12, 19 (1990) (“The determination whether diligence has been used is a factual question

to be decided according to the circumstances of each case.”). The appellate court must defer to

the credibility determinations made by the fact finder, who has seen and heard the witnesses

testify, unless the witnesses’ testimony is inherently incredible. See Smith v. Commonwealth,

56 Va. App. 711, 718 (2010).

       Wife relies on Khanna in support of her contention that the trial court erred in finding she

failed to prove husband committed fraud on the court by filing a false affidavit to obtain service



       3
          Under the standard applicable to actions pursuant to Code § 8.01-428(D), element one
assesses whether the judgment, “in equity and good conscience,” should be enforced. Charles,
243 Va. at 317-18. Wife’s hostile attitude regarding husband’s remarriage was relevant to this
factor, as granting wife’s motion to set aside the decree would have invalidated husband’s
remarriage. Element three concerns whether “fraud, accident, or mistake” prevented wife from
responding to the divorce complaint, and element four considers “the absence of fault or
negligence” by wife. Id. In finding that husband had not committed any fraud in the filing of the
affidavit, the trial court accepted husband’s testimony that he had told wife about the pending
divorce and that she had refused to give him her current address. Thus, wife was not without
fault in the proceeding.
                                                 -6-
by publication. However, Khanna can be distinguished. In Khanna, the wife challenged the trial

court’s denial of her motion to set aside a final decree of annulment pursuant to Code § 8.01-428.

18 Va. App. at 357. This Court reversed that ruling and remanded the case, holding that the

husband had not used due diligence in attempting to locate his wife before serving her by

publication. Id. at 359. However, in Khanna, evidence that the husband had contact with his

wife during the time period in which he filed the affidavit claiming her whereabouts were not

known was “uncontested,” id. at 359, making the claim he exercised due diligence tenuous at

best. Here, the evidence that husband knew wife’s address when he filed his affidavit is

contested, and the trial court resolved the conflict in the evidence by accepting husband’s

testimony that he did not know wife’s address.

       Wife further contends that the trial court erred in concluding she was not prejudiced by

the decree in light of the court’s order granting her sole custody of the parties’ child and child

support. However, wife did not explain in what respect she was prejudiced by the decree.

Although wife contended she had wanted to obtain a divorce in Bangladesh to protect her

interests there, she did not identify the interests she sought to protect. Moreover, it was

undisputed that the parties had no marital property in Virginia to be distributed as part of the

divorce. Finally, as wife notes, the court expressed concern that setting aside the decree would

adversely affect husband’s remarriage. However, the expression of that concern does not

establish wife’s interests were prejudiced by the entry of the divorce decree.

       In summary, the court appropriately assessed all the evidence the parties presented in

determining whether “equity and good conscience” required enforcing the decree, whether wife

had a “good defense” to the divorce action, and whether there was “any adequate remedy at

law.” Charles, 243 Va. at 317-18. Based on that assessment, the trial court concluded the




                                                 -7-
divorce decree should not be set aside and denied wife’s motion. We find no error in that finding

and affirm the decision of the trial court.

                                      Attorney’s fees and costs

       Husband requests that he be awarded fees and costs for his appeal. Rule 5A:30 provides

that this Court may award attorney’s fees and costs incurred on appeal. See O’Loughlin v.

O’Loughlin, 23 Va. App. 690, 695 (1996). The Court’s decision is not limited to whether a party

prevailed on appeal, but considers whether the issue raised was “frivolous” and the equities of

the case. See Wright v. Wright, 61 Va. App. 432, 470 (2013) (quoting O’Loughlin, 23 Va. App.

at 695). Accordingly, having reviewed the record on appeal, we find wife’s appeal was without

merit and grant husband’s request for attorney’s fees and costs incurred on appeal. Accordingly,

we remand the case to the trial court to determine an award of appellate attorney’s fees and costs,

including those incurred in the hearing on remand.

                                              CONCLUSION

       We hold that the trial court applied the correct standard in reviewing wife’s motion to set

aside the divorce decree under Code § 8.01-428(D). We further hold that the trial court did not

err in finding that wife failed to prove that husband committed fraud on the court. We grant

husband’s request for an award of attorney’s fees and costs on appeal.

                                                                          Affirmed and remanded.




                                                 -8-
