Ali Afghahi v. Neda Ghafoorian ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Petty
Argued at Alexandria, Virginia
ALI AFGHAHI
MEMORANDUM OPINION * BY
v. Record No. 1481-09-4 JUDGE ROBERT J. HUMPHREYS
MARCH 30, 2010
NEDA GHAFOORIAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David S. Schell, Judge
Fred M. Rejali for appellant.
Jahangir Ghobadi (Jahangir Ghobadi, P.C., on brief), for appellee.
Ali Afghahi (“husband”) appeals a ruling of the Circuit Court of Fairfax County (“the
circuit court”) ordering him to pay 514 gold coins to Neda Ghafoorian (“wife”), pursuant to what
the circuit court construed as a premarital contract between the parties. 1 On appeal, husband
argues that the circuit court erred in (1) allowing the marriage contract into evidence;
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The parties were married in Iran after executing a “Deed of Marriage” in that country
which in pertinent part states as follows:
Ushering in prosperity and auspiciousness: The gift of a tome of
Holy Koran valued at 50,000 Rials [Iranian currency], a bar of
rock candy, and the pledge of five hundred fourteen (514) full
Bahar-e Azadi (Liberty Spring) gold coins remaining totally the
liability of the husband who must pay the above-mentioned wife.
For informational purposes, and to provide perspective for the issue in this case, we note
that based upon current exchange rates 50,000 Iranian Rials is equivalent to approximately $5 in
United States currency, and a Bahar-e Azadi (Liberty Spring) gold coin is legal tender in Iran
and a single coin is the equivalent of 2,800,000 Iranian Rials. Thus, at current exchange rates,
the 514 gold coins in dispute in this case approximate $141,100 in United States currency.
(2) allowing wife to testify as to Iranian and Islamic law; (3) re-opening the case to take
additional evidence after it had taken his motion to strike under consideration; (4) awarding wife
514 2 gold coins when the unrebutted evidence was that the parties had no assets and never
owned 514 gold coins; and (5) awarding wife 514 gold coins without any expert testimony as to
the contents of the marriage contract and the law of the forum where it was executed. Husband
also contends that the circuit court erred in finding that the marriage contract was not
unconscionable. For the following reasons, we affirm.
ANALYSIS
A. Procedurally Defaulted
Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was stated together with the grounds
therefor at the time of the ruling.” “An appellate court must dispose of the case upon the record
and cannot base its decision upon appellant’s petition or brief, or statements of counsel in open
court. We may act only upon facts contained in the record.” Smith v. Commonwealth, 16
Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). “[O]n appeal the judgment of the lower court is
presumed to be correct and the burden is on the appellant to present to us a sufficient record from
which we can determine whether the lower court has erred in the respect complained of.” Justis
v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). “In the absence [of a sufficient
record], we will not consider the point.” Jenkins v. Winchester Dep’t of Soc. Servs., 12
Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991) (citation omitted).
2
Husband on brief has the number of gold coins owed as 540, yet the final decree of
divorce and the statement of facts note that the number of gold coins owed is 514.
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More specifically, “[w]e cannot review the ruling of a lower court for error when the
appellant does not bring within the record on appeal the basis for that ruling or provide us with a
record that adequately demonstrates that the court erred.” Prince Seating Corp. v. Rabideau, 275
Va. 468, 470-71, 659 S.E.2d 305, 307 (2008). Where we do not have the benefit of a transcript
of the proceedings, we can consider only that which is contained in the written statement signed
by the trial judge. Jenkins, 12 Va. App. at 1185, 409 S.E.2d at 20.
1. Admissibility of Evidence: Marriage Contract
Husband argues that the circuit court abused its discretion in admitting the marriage
contract and its BBC Multilingual English translation (“BBC translation”) into evidence for two
reasons: (1) it was not the original document, therefore the best evidence rule barred its
admission; and (2) they were not properly authenticated as government documents.
In this case, there is nothing in the record noting either husband’s objection to the
admission of the marriage contract or the grounds for it. Nor is there anything in the record
providing the basis for the trial court’s decision overruling husband’s objection. The statement
of facts merely notes that the marriage contract was ultimately admitted “over the objection by
[husband]” without stating what the specific objection was. In addition, the statement of facts
does not even reference the BBC translation or whether husband objected to its admission into
evidence. Further, the notations on the final decree simply state, “evidentiary objections made in
ct [sic] as to best evidence rule pertaining to documents presented and translation of said
documents not being accurate was ultimately overruled by the court.” To reach the merits of this
argument, this Court would have to assume that the objections noted on the final decree were
made contemporaneously and specifically with regards to the admitted marriage contract and
BBC translation. We decline to do so as the burden is on the appellant to present us with a
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sufficient record upon which we can determine whether the circuit court erred. Justis, 202 Va. at
632, 119 S.E.2d at 256-57.
2. Lack of Expert Testimony
Husband further argues that the circuit court erred in awarding wife the coins on the basis
that the marriage contract was vague and unenforceable because expert testimony was not
presented at trial. Specifically, he contends that the marriage contract is vague on its face
because (1) the marriage portion is referred to as both a “gift” and an “obligation” with no
specific due date provided; and (2) there was no expert testimony regarding the meaning of
“marriage portion” or the law of the forum where it was executed.
However, this issue is also procedurally barred under Rule 5A:18 because there is
nothing in the record showing that it was specifically raised before the circuit court. The record
simply notes in the final decree that husband objects because “[t]he marriage certificate was
executed in a foreign forum and no expert testified as to the law of that forum. The certificate
itself is not sufficient to make such award and is vague.” We have nothing in the record
establishing when or in what context husband raised the issue of the marriage contract being
vague to the circuit court or the circuit court’s ruling on this issue. See Prince Seating Corp., 275
Va. at 470-71, 659 S.E.2d at 307 (“We cannot review the ruling of a lower court for error when
the appellant does not bring within the record on appeal the basis for that ruling or provide us
with a record that adequately demonstrates that the court erred.”). Therefore, this issue was not
preserved and we cannot reach its merits.
3. Marriage Contract Unconscionable
Husband also argues the circuit court erred in finding that the marriage contract was not
unconscionable. Specifically, he contends that the marriage contract was unconscionable based
on extreme inequity, which justifies equitable relief.
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Once again, the record fails to show that the husband presented this issue to the trial court
or the basis for the circuit court’s ruling on the issue, as required by Rule 5A:18. Further,
husband’s objection on the final decree simply states “It is unconscionable.” Because we are
limited to the record before us, and the burden is on the appellant to present a sufficient record
upon which we can determine if the trial court erred, there is nothing upon which this Court can
turn to determine if the circuit court committed reversible error. Thus, we do no reach the merits
of this issue.
B. Wife’s Testimony
Husband argues that the circuit court erred in allowing wife to testify as to Iranian and
Islamic law, since she was neither qualified nor offered as an expert on these subjects.
In this case, wife merely testified “she was owed 514 Bahar-E-Azadi gold coins as her
marriage portion and that she was entitled to receive them at any time she demanded in
accordance with [the marriage contract] executed by the parties in presence of witnesses.” She
further testified that “by signing the [marriage contract] [husband] had obligated himself to pay
her 514 coins upon demand.” Husband contends that this testimony was wife opining as to the
meaning of a term in the marriage contract. However, these statements do not constitute expert
testimony as to the meaning of a term in the contract or specifically what Iranian or Islamic law
was with regard to marriage contracts. It was merely the testimony of wife as to what she
believed she was owed in a contract that she had signed.
Thus, she was not required to be qualified as an expert on Iranian and Islamic law and the
circuit court did not err in allowing wife to testify.
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C. Admittance of Additional Evidence
Husband contends that the circuit court abused its discretion when it re-opened the case
and admitted additional evidence after wife rested and the court had taken husband’s motion to
strike under consideration.
[T]he reopening of a case and the admission of additional evidence
after one or both parties have rested is a matter within the
discretion of the trial court and its action will not be reviewed
unless it affirmatively appears that this discretion has been abused
or unless the admission of such additional evidence works surprise
or injustice to the other party.
Laughlin v. Rose, 200 Va. 127, 129, 104 S.E.2d 782, 784 (1958).
In this case, there is no showing that the trial court abused its discretion in admitting the
additional evidence, or that it was a surprise or injustice to the other party. As part of her
case-in-chief, wife attempted to admit a copy of the marriage contract and an English translation
into evidence, and further testified that she had an original copy but did not have it presently with
her in court. Thus, it was to be anticipated and even expected that she would seek the admission
of the original and an English translation of the marriage contract into evidence. Therefore, we
hold that the trial court did not abuse its discretion nor was the admission a surprise or injustice
to husband.
D. Award of 514 Gold Coins
Lastly, husband contends that the circuit court erred in awarding wife the 514 gold coins
when the unrebutted evidence was that the parties had no assets and had never owned the coins.
Husband specifically argues that the trial court abused its discretion in that it misapplied Code
§§ 20-107.3 and 20-109 by granting a monetary award when no value had been set for the award,
the estate or the coins. 3
3
Code § 20-107.3 establishes the procedures that the courts must follow in determining
the equitable distribution of marital assets and that a monetary award can only be granted “based
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In this case, the circuit court did not equitably distribute the coins pursuant to Code
§ 20-107.3 because it did not view the property as marital property. In its letter opinion on
October 27, 2008, the circuit court ordered husband to pay wife the 514 gold coins because it
found them “due and payable under the binding contract entered by the parties, . . . .” (Emphasis
added). In Virginia, parties are permitted to enter into premarital agreements, which are akin to
contracts, in which they can “contract with respect to . . . [a]ny other matter, including their
personal rights and obligations, not in violation of public policy or a statute imposing a criminal
penalty.” Code § 20-150. Because the circuit court found the coins due under a premarital
agreement, the trial court did not abuse its discretion in that it did not even apply Code
§ 20-107.3 to the facts in this case. Thus, we hold that the circuit court did not err in ordering the
514 gold coins due and payable.
Affirmed.
upon the equities and rights and interests of each party in the marital property.” Robinette v.
Robinette, 4 Va. App. 123, 129, 345 S.E.2d 808, 811 (1987). Code § 20-109 provides the rules
for changing the maintenance and support for a spouse.
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