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2004-UP-548 - Stewart v. Stewart

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Shelley Diane Stewart,        Respondent,

v.

Mark Francis Stewart,        Appellant.


Appeal From Lancaster County
Brooks P. Goldsmith, Family Court Judge


Unpublished Opinion No. 2004-UP-548
Submitted October 1, 2004 – Filed October 27, 2004


AFFIRMED


Stephen D. Schusterman, of Rock Hill, for Appellant.

Philip E. Wright, of Lancaster, for Respondent.

PER CURIAM:  Mark Francis Stewart appeals the family court’s denial of his Rule 60(b)(3), SCRCP, motion for relief from the decree of divorce.  We affirm [1] pursuant to Rule 220(b), SCACR, and the following authorities:  Raby Const., L.L.P. v. Orr, 358 S.C. 10, 20, 594 S.E.2d 478, 483 (2004) (stating that in order to be entitled to relief due to fraud, the party seeking such relief must establish extrinsic rather than intrinsic fraud); Chewning v. Ford Motor Co., 354 S.C. 72, 81, 579 S.E.2d 605, 610 (2003) (“[T]he failure to disclose to an adversary or court matters which would defeat one’s own claim is intrinsic fraud.”); Raby, 358 S.C. at 21 n.7, 594 S.E.2d at 484 n.7 (quoting Chewning, 354 S.C. at 82 n.6, 579 S.E.2d at 611 n.6.) (“[E]ven in cases of extrinsic fraud, a party does not have a claim ‘if he failed to exercise due diligence in discovering the existence of facts or documents during the underlying litigation.’”).

AFFIRMED.

HEARN, C.J., and HUFF and KITTREDGE, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.