William McFadden v. Aleida Mejia McFadden ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
WILLIAM McFADDEN AND
CATHERINE McFADDEN
MEMORANDUM OPINION * BY
v. Record No. 2086-94-2 JUDGE ROSEMARIE P. ANNUNZIATA
DECEMBER 5, 1995
ALEIDA MEJIA McFADDEN
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Denis C. Englisby (Englisby & Englisby, on brief),
for appellants.
No brief or argument for appellee.
Torrence M. Harman (Harman & Harman, on brief),
Guardian ad litem, for Soley McFadden, an infant.
Appellants William McFadden (William) and Catherine McFadden
(Catherine) appeal the order of the circuit court denying
William's motion to set aside and motion for injunction and
deciding other issues. Appellants raise the following issues on
appeal: (1) whether the trial court erred by denying William's
motion to recuse; (2) whether the trial court erred in sustaining
the guardian ad litem's motion to strike; and (3) whether the
trial court erred in denying Catherine's petition to intervene.
We affirm the trial court's decision.
By final decree entered March 2, 1990, Aleida McFadden
(Aleida) was granted a divorce from William on the ground that
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
the parties had lived separate and apart for one year. The final
decree incorporated by reference the couple's Separation and
Property Settlement Agreement (Agreement). The final decree
noted that "there are two (2) infant children born of the
marriage," one of whom was Soley Kim McFadden (Soley). In
pertinent part, the final decree also stated the following:
ADJUDGED, ORDERED and DECREED that defendant,
William S. McFadden shall hold, invest and use all
funds given to him for the purpose of providing
his children a college education and for no other
purpose other than to pay the costs of a college
education for each of the infant children and he
shall not transfer or dissipate said funds and
income for any other purpose pursuant to paragraph
19 of said agreement.
By decree dated May 29, 1991, the circuit court assumed control
over those funds when Aleida presented evidence that William was
misusing the funds in violation of the Agreement.
In 1993, William filed a motion pursuant to Code § 8.01-428,
alleging fraud on the part of Aleida and requesting that the
divorce case be reinstated on the court's docket. William
alleged that Soley was not his biological daughter, asked the
trial court to set aside its factual finding concerning the
paternity of Soley and her right to the funds being held by the
court, and sought the return of child support previously paid
plus additional damages. The court granted the motion of the
guardian ad litem to strike William's case for his failure to
establish fraud on the part of Aleida.
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I.
"It is within the trial judge's discretion to determine
whether he harbors bias or prejudice which will impair his
ability to give the defendant a fair trial." Terrell v.
Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991).
"In exercising such discretion, a judge must not only
consider his or her true state of impartiality, but also the
public's perception of his or her fairness, so that the public
confidence in the integrity of the judicial system is
maintained." Buchanan v. Buchanan, 14 Va. App. 53, 55, 415
S.E.2d 237, 238 (1992). However, "[e]ven when circumstances
create an appearance of bias, unless the conduct of the judge is
shown to have affected the outcome of the case," the trial
court's determination will not be reversed. Welsh v.
Commonwealth, 14 Va. App. 300, 317, 416 S.E.2d 451, 461 (1992),
aff'd, 246 Va. 337, 437 S.E.2d 914 (1993). The trial court's
determination will be reversed on appeal only for an abuse of
discretion. Terrell, 12 Va. App. at 293, 403 S.E.2d at 391.
William's motion to recuse noted that he had filed a
complaint against the judge with the Judicial Inquiry and Review
Commission. In addition, William contended that because the
judge had been involved in the earlier divorce action and had
previously ruled against him, the judge was biased against him.
William also alleged that the judge engaged in ex parte
communications with Aleida and failed to place William's
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correspondence and pertinent orders into the record.
The filing of a complaint against a judge does not require
recusal. See id. at 293, 403 S.E.2d at 391. Similarly,
"`[m]erely because a trial judge is familiar with a party and his
legal difficulties through prior judicial hearings . . . does not
automatically or inferentially raise the issue of bias.'"
Buchanan, 14 Va. App. at 55, 415 S.E.2d at 238 (quoting Deahl v.
Winchester Dep't. of Social Servs., 224 Va. 664, 672-73, 299
S.E.2d 863, 867 (1983).
Moreover, nothing in the record supports William's claim
that the judge participated in improper ex parte communication.
On the contrary, the record indicates that, despite the high
volume of letters filed throughout the course of the litigation,
the judge kept all parties notified of correspondence it received
from each side. Even accepting the allegation that several
documents are missing from the record, we cannot say that this
factor illustrates prejudice or bias on the part of the judge
against William. Therefore, we cannot say that the judge's
denial of William's motion to recuse was a clear abuse of
discretion.
II.
"Upon familiar principles, we review the evidence on appeal
in the light most favorable to wife, the party prevailing below."
Cook v. Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896 (1994).
"'Where . . . the court hears the evidence ore tenus, its
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finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it.'"
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (quoting Martin v. Pittsylvania Dep't of Social
Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
William filed a motion, pursuant to Code § 8.01-428(D), 1 to
set aside portions of the final divorce decree. William alleged
that Aleida fraudulently misrepresented that William was Soley's
father. As the party seeking to set aside a final order on the
basis of fraud, appellant had the burden of proving "`(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.'"
Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723
(1991) (quoting Winn v. Aleda Constr. Co., Inc., 227 Va. 304,
308, 315 S.E.2d 193, 195 (1984)).
While William presented the results of a blood test as
evidence that he was not Soley's father, he presented no evidence
establishing Aleida's knowing or intentional misrepresentation of
1
This subsection 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.
Prior to the 1993 amendment, this subsection was codified as
§ 8.01-428(C).
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the paternity of Soley. On the contrary, Aleida testified that
she was "shocked" to learn the results of the blood test and
maintained throughout her testimony that she believed that Soley
was, in fact, William's child. Aleida denied having intercourse
with anyone other than William during their marriage, although
she admitted she had been raped in the parking lot of her place
of employment. Aleida also admitted she had not reported the
rape to the police or to William, but testified that she was
"very, very afraid of the reaction from my husband" if she had
disclosed the rape. Aleida testified that "I had no reason to
believe at the time that Soley -- the birth of Soley had any
relation to that. But I don't know for sure."
The trial judge, who had the opportunity to observe the
witnesses, found Aleida's testimony credible. "Where the
credibility of witnesses is crucial to the determination of
whether the facts support a finding of fraud, the judge's
evaluation of the witnesses' testimony heard ore tenus and the
weight to be given the testimony will not be disturbed on appeal
unless the judge's findings are plainly wrong or without evidence
to support them." Dunbar v. Hogan, 16 Va. App. 653, 657, 432
S.E.2d 16, 18 (1993) (citing Shortridge v. Deel, 224 Va. 589,
592, 299 S.E.2d 500, 502 (1983)).
"The charge of fraud is one easily made, and the burden is
upon the party alleging it to establish its existence, not by
doubtful and inconclusive evidence, but clearly and conclusively.
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Fraud cannot be presumed. It must be proved by clear and
satisfactory evidence." Aviles v. Aviles, 14 Va. App. 360, 366,
416 S.E.2d 716, 719 (1992). To establish a prima face case where
close family relationships underlie the alleged fraudulent
transaction, only slight evidence is required, however. Haynes
v. Bunting, 152 Va. 395, 399, 147 S.E. 211, 212 (1929). The
prima facie showing in this case turned on the credibility of the
witnesses which the trial judge resolved in favor of Aleida. As
William failed to establish a prima facie case that Aleida
intentionally and knowingly made a false representation of a
material fact with the intent to mislead, we cannot say the trial
judge erred in granting the guardian ad litem's motion to strike.
III.
Under Rule 2:15, "[a] new party may by petition filed by
leave of court assert any claim or defense germane to the subject
matter of the suit." An intervenor must assert some right or
claim involved in the suit. Layton v. Seawall Enters., Inc., 231
Va. 402, 403, 344 S.E.2d 896, 897 (1986). The denial of a
petition to intervene will not be overturned on appeal absent an
abuse of discretion. See Shank v. Department of Social Servs.,
217 Va. 506, 511, 230 S.E.2d 454, 457 (1976).
Catherine, Soley's grandmother, filed a petition to
intervene in order to participate in the disposition of funds
held by the court pursuant to its previous orders. The Agreement
and the final decree of divorce provided that William was
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responsible for holding these funds. Catherine contends that the
funds belong to her.
The decree's provision was enforceable by the court through
its contempt powers. Doherty v. Doherty, 9 Va. App. 97, 99, 383
S.E.2d 759, 760 (1989). Under neither the court's decree nor the
Agreement did Catherine retain a right to recover these funds.
Moreover, in the arguments before the trial court, Catherine
challenged the court's decision in 1991 to hold the funds in
trust following William's misuse of those funds. Catherine did
not pursue an appeal of the court's order at that time and it
became final. Rule 1:1. While it may be noted that Catherine
has not been a party in this matter, the record contains many
letters to the court from Catherine demonstrating that she
followed the litigation closely, but failed to seek relief from
the final orders effecting the disposition of the funds.
Ultimately, Catherine's petition to intervene is linked to
the allegation of fraud made by William in his motion to set
aside portions of the divorce decree. The trial court ruled that
William had failed to establish fraud. Therefore, we cannot say
that the trial court's decision denying Catherine's petition to
intervene was an abuse of discretion.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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Hodges, J. dissenting.
I am constrained to dissent from the majority opinion. The
issue in this case revolves on the credibility of the appellee
who was called as an adverse witness by William. The fact that
William is not the father of the child is undisputed.
Because of the birth control practices of the parties before
the child's birth, William was suspicious when the child was
born. Until the DNA testing, he had no knowledge that he was not
the father and to that point had supported and assumed his
paternal responsibilities. There is absolutely no evidence to
show that he assumed any obligation to the child with knowledge
of paternity by another.
When the appellee was confronted with the DNA results, she
through her counsel endorsed a consent decree which would have
adjudicated that William was not the father and that he be
relieved of any further obligation for support. The trial court
rejected the decree but did grant William leave to proceed with a
hearing. When called as an adverse witness by William, appellee
testified as follows:
Q. Okay. Were you having sexual intercourse with
another man prior to the time Soley was born?
A. On that, I can say that there was a time when
I was raped in the parking lot of my work; and I had no
reason to believe at the time that Soley -- the birth
of Soley had any relation to that. But I don't know
for sure. In my heart, I know that Soley is Bill's
father -- I mean, Soley's father.
Q. You were raped in the parking lot?
A. At my work. Correct.
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Q. Prior to Soley's birth?
A. I don't remember exactly at what time. I
wanted to get it out of my mind.
Q. Yes, ma'am. Did you report it to the police?
A. No.
Q. No.
A. I did not report it to the police or to my
husband because I was very, very afraid of the reaction
from my husband, what he would do, whether he would
come to work and maybe start killing everyone.
Furthermore, I would end up losing my job as a result.
He would probably end up killing me for not having a
job.
Q. Yes, ma'am. Have you ever had sexual
intercourse with another man other than the rapist
prior to Soley's birth?
A. No, sir. Never. During my marriage, I never
-- As a matter of fact, I never had anything else to do
with any other man besides my husband Bill McFadden at
that time and now my current husband.
On motion of the child's guardian ad litem, the trial judge
in reliance on the foregoing testimony of the appellee, struck
William's evidence.
"The court is the judge of the credibility of the witnesses,
and its findings are of great weight on appeal." Klein v. Klein,
11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990) (citing
Shortridge v. Deel, 224 Va. 589, 592, 299 S.E.2d 500, 502
(1983)).
"The [fact finder's determination] . . . may only be
disturbed on appeal if this Court finds that [the
witness'] . . . testimony was 'inherently incredible, or so
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contrary to human experience as to render it unworthy of
belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406
S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va.
296, 299-300, 321 S.E.2d 202, 204 (1984) (Robertson involved a
challenge to the credibility of the key witness).
I find the appellee's testimony to be inherently incredible.
She did not remember whether the alleged rape occurred before or
after the child's birth; she did not report it to the police; and
most importantly, did not report it to her husband or any other
family member. Moreover, appellee's uncertainty of when the rape
was committed completely eliminated any consideration that
conception resulted from such a dastardly, despicable act if it
did in fact take place.
On this evidence, it will be a grave injustice to require
William to support a child undisputedly not his. I would reverse
and remand for a full hearing.
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