John Stark v. Firouzeh Dinarany ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and Senior Judge Haley
PUBLISHED
Argued by videoconference
JOHN STARK
v. Record No. 0356-21-4
FIROUZEH DINARANY OPINION BY
JUDGE RANDOLPH A. BEALES
FIROUZEH DINARANY NOVEMBER 30, 2021
v. Record No. 0166-21-4
JOHN STARK
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David Bernhard, Judge
Tara Steinnerd Talley (Steinnerd Law PLLC, on briefs), for John
Stark.
Minji Kim (Alanna C.E. Williams; Cook, Craig & Francuzenko,
PLLC, on briefs), for Firouzeh Dinarany.
In these companion appeals, both John Stark and Firouzeh Dinarany appeal from a
divorce decree of the Circuit Court of Fairfax County. Stark argues on appeal that “[t]he trial
court erred by including the parties’ post-nuptial agreement into evidence” and further challenges
the trial court’s decisions on spousal support and equitable distribution. Dinarany also
challenges the trial court’s rulings on spousal support and equitable distribution and further
argues that the trial court erred in its apportionment of attorney’s fees.1
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In her brief, Dinarany’s eighth assignment of error states that “[t]he trial court erred in
the amount of child support by not making an adjustment in favor of the Wife for support of
another child,” but Dinarany expressly states on brief that “this assignment of error must also be
conceded.”
I. BACKGROUND
Stark and Dinarany were married on December 18, 2012. They have a daughter together,
who was born during the marriage. Dinarany also has a son from a prior marriage.
At the time of the marriage, Stark served in the United States Army. He continued to
serve until late 2016, when he retired from the Army and accepted a position as a diplomat with
the United States Department of State. According to Stark, he served more than twenty-five
years in the Army in total – the last four of which he served while married to Dinarany. Due to
his military service, Stark earns a monthly retirement pension from the Army.
The parties own a home in McLean, Virginia, which they acquired during the marriage.
In Stark’s complaint for divorce, he stated that the parties “had tenants scheduled to move into
the home in August, 2019” but alleged that Dinarany “unilaterally cancelled the contract for the
tenants” and moved into the McLean home with the children at the end of July 2019. The parties
thus separated at the end of July 2019. After the parties separated, Stark continued making
mortgage payments on the McLean home until April 2020, after which he placed the home in
mortgage forbearance. Stark testified that the forbearance permitted him to defer mortgage
payments for up to one year with no penalty and that he would then pay back the deferred
payments at the end of the forbearance period. He further testified that, as the only party named
as liable on the mortgage, he did not need Dinarany’s consent for the forbearance.
Stark and Dinarany executed two agreements that are relevant to these appeals. On
December 17, 2012, the day before their marriage, they executed a prenuptial agreement. The
prenuptial agreement contained a paragraph entitled “Dissolution of Marriage,” which stated that
“it is the express intention of John and Firouzeh that the following provisions shall prevail in the
event of a dissolution” of the marriage:
a. Each party shall have an equal interest in all property acquired
by either party during the course of the marriage (except property
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that is merely the result of an increase in the value of property
owned separately by the parties prior to the marriage, as listed on
the attached schedules).
b. All savings, investments, retirement accounts, and all property
listed on the attached schedules as separate property (owned by a
party prior to the marriage) shall remain the separate property of
that party who brought such property into the marriage, including
any appreciation, income, or other increase to such property.
c. All joint property and accounts shall be divided equally.
d. The parties shall have joint custody of any children born to or
adopted into the marriage. Such joint custody entitles each party to
equal visitation time, or time which is otherwise fair and equitable.
The agreement also provided that “in the event of a marital separation or dissolution, it is agreed
and understood that neither party shall seek or obtain any form of alimony or support from the
other, or seek any relief, other than a distribution of their joint property interests or those
property interests acquired during the course of the marriage, in any manner other than as
provided by this Agreement.” In addition, the prenuptial agreement contained a provision
governing revocation, which stated that any subsequent revocation “shall be ineffective until
recorded with the recorder in the county where the parties maintain their primary residence or
both counties if the parties are maintaining separate residences in separate counties.”
The parties subsequently executed a postnuptial agreement on August 17, 2016. The
postnuptial agreement is a one-page document that contains one operative provision, which says,
“In consideration of the marriage between the parties, the parties mutually agree to the
following: The pre-nuptial agreement of December 17, 2012 is nullified.” The postnuptial
agreement was signed by both parties and sworn before a notary.
Stark filed for divorce on April 13, 2020. In his complaint for divorce, Stark asked for a
divorce “on the grounds of desertion” and requested specific and general relief from the trial
court, including “[t]hat he be awarded physical and legal custody of the minor child of the
parties; . . . [t]hat the Court divide, transfer or partition marital property which is titled in the
names of both parties; . . . [t]hat the Court grant to Plaintiff a monetary award, payable in either a
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lump sum or over a period of time in fixed amounts; [and] [t]hat he may be granted any and such
further relief pursuant to Sections 20-107.1, 20-107.2 and 20-107.3[.]” The complaint did not
refer to any prenuptial agreement between the parties. Dinarany filed a counterclaim for divorce
on April 21, 2020, in which she asked for legal and physical custody, spousal support, child
support, equitable distribution, attorney’s fees, and “such other remedies as are available to her
pursuant to the Court’s equitable distribution and spousal support award powers[.]” A trial date
was set for October 26, 2020. In setting the trial date, the circuit court entered a scheduling order
providing that “[t]he parties shall complete discovery, including depositions, by thirty (30) days
before the applicable trial date[.]”
During discovery, Stark produced the prenuptial agreement for the first time. Dinarany
claimed that she then provided a copy of the postnuptial agreement to her counsel the following
day. Dinarany’s counsel claimed that he then sent the postnuptial agreement to Stark and his
counsel. Stark’s counsel denied receiving a copy of the postnuptial agreement and further
argued that Dinarany and her counsel failed to produce any documents relevant to equitable
distribution before the discovery deadline set by the scheduling order. Consequently, Stark filed
a motion in limine seeking to exclude Dinarany’s proposed financial exhibits as well as the
postnuptial agreement itself. In the motion in limine, Stark argued that “[t]his property/support
case is governed by a pre-nuptial agreement, which was properly disclosed in Plaintiff’s
discovery responses.” In response, Dinarany argued that the postnuptial agreement nullified the
prenuptial agreement and that Stark could not claim to be surprised by the postnuptial agreement
given that he signed it and knew about it. The circuit court held a hearing on the motion in
limine and subsequently entered an order barring Dinarany’s financial exhibits from trial but
ruling that “Defendant [Dinarany] may present the Post-Nuptial Agreement[.]” The following
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Monday, October 26, 2020, was the first day of trial. On the morning of October 26, Dinarany’s
counsel recorded the postnuptial agreement in the Circuit Court of Fairfax County.
At trial, Stark testified that the parties signed a prenuptial agreement the day before the
marriage. He then moved to admit both the prenuptial agreement and the postnuptial agreement
into evidence. The trial judge stated, “Well, just by admitting it, I’m not saying that I’m going to
enforce it. Obviously, you two are . . . disputing as to whether it is enforceable or not. I think I
need . . . to review both agreements plus all the evidence to determine whether it is
enforceable[.]” Stark’s counsel replied, “Of course.” Stark’s counsel subsequently reiterated, “I
don’t have a problem with that coming in,” and stated shortly thereafter,
They are trying to say that Mr. Stark absolutely knew there was a
postnup. We’re not objecting to that. Of course, he knew there
was one. We never said otherwise. He didn’t have a copy of it,
and he had no idea if it was going to be produced or not. They did
produce it after the deadline. Again, we don’t have a problem with
it coming in.
The parties disputed whether the postnuptial agreement effectively revoked the prenuptial
agreement according to the provision that any revocation “shall be ineffective until recorded with
the recorder in the county where the parties maintain their primary residence or both counties if
the parties are maintaining separate residences in separate counties,” which involved a lengthy
factual dispute over Stark’s residence for purposes of the agreement. The trial court
subsequently ruled that the recorded postnuptial agreement would be admissible and that the
postnuptial agreement revoked the prenuptial agreement. The trial judge noted that “this Court,
in particular me, takes very seriously the rules in discovery,” but also noted that “[t]he problem
in this particular case is that what is sought to be excluded is a particular item of evidence, an
agreement, that both parties . . . an agreement that both parties knew existed.” Continuing, the
trial judge noted that “in this case, there are unusual circumstances that – this is not an expert
report sought to be admitted or some item of evidence where the plaintiff doesn’t know exactly
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what they’ve signed. . . . This is an item of evidence that both parties knew existed and signed.”
On the issue of whether the postnuptial agreement revoked the prenuptial agreement, the trial
judge reasoned that the parties had not shown that Stark maintained a residence in another
county in which the agreement could be recorded. When Stark objected, the trial judge asked,
“In which county does he have a separate residence?” His counsel responded:
I’m going to be quiet. Because what’s going to happen is I’m
going to share that, and the defense is going to file it. And then
what’s going to happen is we’re going to come back, and you’re
going to say, “Oops, it’s a matter of equity now. I can’t do
anything about it.” So, no, I elect not to elect that. And you have
not taken evidence on where his residence is. So if it’s coming in,
let’s let it come in, let’s continue the trial, and we’ll deal with it on
appeal.
Consequently, the trial court proceeded to consider the issues raised between Stark’s complaint
for divorce and Dinarany’s counterclaim for divorce, including spousal support, equitable
distribution, and attorney’s fees.
In the final divorce decree, the trial court noted that Stark provided for the family
financially while Dinarany took care of the home and tended to the children. Moreover, Stark
financed the down payment on the marital home with his separate property and made
post-separation mortgage payments while Dinarany made “substantial nonmonetary
contributions,” such as finding the McLean home, working with the realtor to obtain the home,
working with contractors to do kitchen and bathroom renovations, and generally maintaining the
home. In consideration of its findings, the trial court ruled, “The McLean house shall be listed
for sale and sold as expeditiously as possible[.]” The trial court ordered that the net proceeds
would be divided such that Stark “shall receive the first payment of $9,067.52 for his sole
payments of the principal of the mortgage from the date of separation (payment of July 31, 2019)
to the date the home was placed in forbearance (on or about May 1, 2020)” and that Stark “shall
receive a return of his separate property down payment towards the property,” which the trial
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court found “was properly traced in Husband’s presentation of evidence as his separate property,
in the amount of $175,737.44.” The trial court further ruled that any “remaining proceeds, after
the above payments to Husband, shall be divided equally (50/50) between the parties.”
(Emphasis added). Finally, the trial court ruled, “If the forbearance agreement requires that the
forbearance mortgage amounts be paid before, during, or after the closing of this property, the
Wife and Husband shall be equally responsible for making these payments.”
With respect to the distribution of Stark’s Army retirement pension, the trial court found,
“There was no evidence presented as to the marital portion of Husband’s pension, or if any
portion of this asset is marital property.” Consequently, the trial court ruled, “Aside from the
TSP distribution above, the parties shall keep any and all retirement, pension, IRA or other
funds/benefits currently held in their name, as their sole and separate property, with no
contribution from the other party.”
As for spousal support, the trial court made findings of fact on each of the statutory
factors and ordered Stark to pay spousal support to Dinarany in the amount of $3,500 per month
for a period of four years.
Finally, the trial court “considered the issue of attorney’s fees under advisement after
conclusion of the arguments on the awarding of fees.” The court then ruled, “Upon
consideration of the evidence and arguments presented, the Court finds that it is proper to award
attorney’s fees to the Husband and orders the Wife to reimburse the Husband a total of
$17,360.55 of his attorneys’ fees incurred in this case.” However, the trial court specifically
ordered that some of the attorney’s fees would be apportioned between Dinarany and her counsel
for the discovery violations caused by counsel and for “needlessly increas[ing] the cost of
litigation.” Both Stark and Dinarany appealed different aspects of the trial court’s decision.
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II. ANALYSIS
A. Stark’s Assignment of Error 1 Regarding the Parties’ Agreements
Stark’s first assignment of error is that “[t]he trial court erred by including the parties’
post-nuptial agreement into evidence, because it was not timely produced in discovery, and it
was not effectuated as required by Paragraph 12 of the premarital agreement, because it was not
registered in the county of residence of the Husband.”
“The determination of whether to admit evidence ‘rests within the sound discretion of the
circuit court and will only be disturbed on appeal upon a showing of an abuse of discretion.’”
Lee v. Spoden, 290 Va. 235, 251 (2015) (quoting Gamache v. Allen, 268 Va. 222, 228 (2004)).
Moreover, Rule 4:12(b) provides, “If a party . . . fails to obey an order to provide or permit
discovery, . . . the court in which the action is pending may make such orders in regard to the
failure as are just[.]” The Supreme Court has made clear that “[a] trial court generally exercises
‘broad discretion’ in determining the appropriate sanction for failure to comply with an order
relating to discovery.” Walsh v. Bennett, 260 Va. 171, 175 (2000) (quoting Woodbury v.
Courtney, 239 Va. 651, 654 (1990)). “Because the trial court ‘exercises broad discretion in
determining the appropriate sanction,’” this Court reviews its decision for an abuse of discretion.
Galloway v. County of Northampton, 299 Va. 558, 563 (2021) (quoting Landrum v. Chippenham
& Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)). “When we say that a circuit court has
discretion, we mean that ‘the [circuit] court has a range of choice, and that its decision will not
be disturbed as long as it stays within that range and is not influenced by any mistake of law.’”
Galiotos v. Galiotos, 300 Va. 1, 10 (2021) (alteration in original) (quoting Landrum, 282 Va. at
352). “Thus, only when reasonable jurists could not differ can we say an abuse of discretion has
occurred.” Id. at 11 (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)).
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The trial court found that Dinarany’s counsel failed to provide Stark and his attorney with
a copy of the postnuptial agreement until October 21, 2020, after the discovery deadline set by
the scheduling order had passed. Stark thus contends that the trial court should have excluded
the postnuptial agreement from evidence because it “was not timely produced in discovery[.]”
He therefore argues on appeal that “[t]his case should be remanded to the trial court with
instructions to enforce the parties’ premarital agreement.”
However, although the prenuptial agreement contained a specific paragraph governing
judicial proceedings in the event of divorce, Stark’s complaint for divorce made no mention of
the prenuptial agreement or its provisions for the dissolution of the marriage. As the Supreme
Court of Virginia has repeatedly stated, “It is firmly established that no court can base its
judgment or decree upon facts not alleged or upon a right which has not been pleaded and
claimed.” Ted Lansing Supply Co. v. Royal Aluminum & Const. Corp., 221 Va. 1139, 1141
(1981); see also Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935) (“No court can base
its decree upon facts not alleged, nor render its judgment upon a right, however meritorious,
which has not been pleaded and claimed.” (emphasis added)). “Under Virginia’s notice pleading
regime, ‘[e]very pleading shall state the facts on which the party relies in numbered paragraphs,
and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or
defense.’” Allison v. Brown, 293 Va. 617, 624 (2017) (quoting Rule 1:4(d)) (alteration in
original). Explained more thoroughly by the Supreme Court,
The basis of every right of recovery under our system of
jurisprudence is a pleading setting forth facts warranting the
granting of the relief sought. . . . Pleadings are as essential as
proof, the one being unavailing without the other. A decree cannot
be entered in the absence of pleadings upon which to found the
same, and if so entered it is void.
Ted Lansing, 221 Va. at 1141. Thus, “[t]he issues in a case are made by the pleadings, and not
by the testimony of witnesses or other evidence.” Id. Because the issues in a case are made by
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the pleadings, it follows that, as the Supreme Court has also stated, a “[d]efendant is supposed to
know the plaintiff’s grievances only from his statement of them in the pleadings.” Lee v.
Lambert, 200 Va. 799, 802 (1959) (emphasis added) (quoting Bank of Giles Cnty. v. Mason, 199
Va. 176, 180 (1957)).
Here, despite the absence of even a passing reference to the prenuptial agreement in the
complaint, Stark’s counsel stated during her opening statements at trial that it governs this case
and also stated that “[t]he biggest issue in this case is going to be the prenup and the postnup,”
that “we are moving forward in this case saying that the prenup controls the division of the
property,” and that “[s]ince the prenup does control the division of the property, it seems pretty
easy how we’re going to divide things.” Stark’s counsel also said, “In the prenuptial agreement,
both parties have waived spousal support[,] [s]o we don’t have any spousal support issues in this
case.”
The first time Stark identified the prenuptial agreement was during discovery – in his
answers to defendant’s interrogatories. However, the answers that Stark provided in response to
Dinarany’s interrogatories during discovery do not constitute a pleading asserting a contractual
right. Stark’s argument at trial (and now before this Court) turns on the enforceability of the
prenuptial agreement – as illustrated by the fact that Stark’s counsel opened by stating that “the
biggest issue in this case is going to be the prenup and the postnup.” Moreover, in Dinarany’s
counterclaim for divorce, she asserted several additional claims for relief that contravene the
express provisions of the prenuptial agreement, including a claim for spousal support and a claim
to a portion of Stark’s retirement pension, but Stark did not file an answer or responsive pleading
raising a defense to Dinarany’s claims based on the prenuptial agreement’s governing those
claims. In addition, Stark did not seek to amend his own complaint for divorce where he never
mentioned the prenuptial agreement. The Supreme Court has made clear that “[e]very litigant is
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entitled to be told by his adversary in plain and explicit language what is his ground of complaint
or defense.” Ted Lansing, 221 Va. at 1141 (emphasis added) (quoting Potts, 165 Va. at 207); see
also Blizzard v. Salyer, 125 Va. 604, 610 (1919) (holding that “if the appellants were entitled to
the protection of the registry statute aforesaid, that was a matter of defense to the benefit of
which they could entitle themselves only by affirmative pleading, setting up such defense and by
proof sustaining such pleading” (emphasis added)). Thus, when the true nature of a litigant’s
defense is a contractual right, well-settled Virginia law requires that such a defense be stated
plainly and explicitly in a valid pleading. See Blizzard, 125 Va. at 610. However, Stark did not
state “in plain and explicit language” a defense to Dinarany’s counterclaim based on the
prenuptial agreement. See Ted Lansing, 221 Va. at 1141. In fact, he did not even file any
answer to Dinarany’s counterclaim, or as noted supra, ever amend his own complaint for
divorce.
In addition, the record shows that Stark did not object to the inclusion of the postnuptial
agreement in evidence. In fact, Stark is the party who moved to admit the postnuptial agreement
in evidence at trial. Stark asked the trial court to accept both the prenuptial agreement and the
postnuptial agreement as Plaintiff’s Exhibit 3. When counsel for Stark did so, the trial judge
said, “Well, just by admitting it, I’m not saying that I’m going to enforce it. Obviously, you two
are . . . disputing as to whether it is enforceable or not. . . . I need to review both agreements plus
all the evidence to determine whether it is enforceable[.]” Stark’s counsel subsequently
reiterated, “I don’t have a problem with that coming in,” and repeated shortly thereafter, “Again,
we don’t have a problem with it coming in.” As the Supreme Court has repeatedly admonished,
“It is improper for a litigant to invite error and take advantage of the situation created by her own
wrong.” Matthews v. Matthews, 277 Va. 522, 528 (2009); see also Rowe v. Commonwealth,
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277 Va. 495, 501-02 (2009) (declining to reach the merits of an assignment of error on appeal to
the Supreme Court “because Rowe invited the very error of which he now complains”).
Considering Stark’s first assignment of error against this backdrop, we cannot say that the
trial court erred by admitting the postnuptial agreement in evidence. Because Stark never raised
the prenuptial agreement in his complaint for divorce or amended his complaint to claim the
prenuptial agreement governed these issues – or even filed an answer to Dinarany’s counterclaim
raising it, Supreme Court case law is clear that Stark cannot now rely on the prenuptial
agreement to prevail on these issues. Therefore, we do not reach Stark’s argument that the
prenuptial agreement was effective – and controlled the equitable distribution and spousal
support questions before the trial court. Furthermore, Stark asked the circuit court at trial to
admit the postnuptial agreement – and told the trial judge on more than one occasion at trial that
he had no problem with its being admitted. Stark cannot now on appeal attempt to benefit by
claiming as error that which he asked the trial court to do. Consequently, for all of these reasons,
we cannot say that the trial court erred by including the parties’ postnuptial agreement in
evidence, and we do not overturn the trial court’s decision on Stark’s first assignment of error.
B. Equitable Distribution
Both Stark and Dinarany assign error to the trial court’s distribution of the marital
property. “In reviewing an equitable distribution award on appeal, we have recognized that the
trial court’s job is a difficult one, and we rely heavily on the discretion of the trial judge in
weighing the many considerations and circumstances that are presented in each case.” Wright v.
Wright, 61 Va. App. 432, 449-50 (2013) (quoting Klein v. Klein, 11 Va. App. 155, 161 (1990)).
“Accordingly, ‘decisions concerning equitable distribution rest within the sound discretion of the
trial court[.]’” Id. at 450 (quoting McDavid v. McDavid, 19 Va. App. 406, 407-08 (1994)). The
circuit court’s “discretion is limited only in that the circuit court must consider all of the factors
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in Code § 20-107.3(E).” Fadness v. Fadness, 52 Va. App. 833, 842 (2008). “If the circuit court
considers all the factors and bases its findings on credible evidence, we will not disturb its
decision on appeal.” Id.
1. Stark’s Appeal (Stark’s Assignment of Error 4)
Stark contends that “[t]he trial court erred in ruling that the forbearance amount owed on
the Virginia marital residence shall be split evenly between the parties.” He submits that because
Dinarany “had use of the entire home” during their separation, she “should have been
responsible for half of the mortgage as one of two joint owners of the home, and for the other
half of the mortgage as compensation for exclusive use of the husband’s half of the property.”
In fashioning its equitable distribution order, the trial court considered both Stark’s
monetary contributions and Dinarany’s non-monetary contributions to the well-being of the
family, noting that Stark largely provided for the family financially while Dinarany largely took
care of the home and tended to the children. See Code § 20-107.3(E)(1). The trial court further
found that Stark financed the down payment on the McLean home with his separate property –
and that he made post-separation mortgage payments from his separate property until the home
was placed in mortgage forbearance. See Code § 20-107.3(E)(2). However, the trial court also
found that Dinarany “made substantial nonmonetary contributions to the acquisition and care and
maintenance” of the marital property. For example, she found the marital home, worked with the
realtor to obtain the home, and worked with contractors on kitchen and bathroom renovations at
the home. Id. After laying out its findings of fact on each of the statutory factors, the trial court
ordered that the McLean home “shall be listed for sale and sold as expeditiously as possible.”
The trial court specifically ordered that the net proceeds from the sale would be divided so as to
credit Stark for his sole payments toward the mortgage principal from the time of separation until
the time of mortgage forbearance and to reimburse Stark for his down payment on the home
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using his separate property to do so. Once Stark is reimbursed for those contributions, the
remaining proceeds must be split equally between the parties. Consequently, the trial court
reasoned that “[i]f the forbearance agreement requires that the forbearance mortgage amounts be
paid before, during, or after the closing of this property, the Wife and Husband shall be equally
responsible for making these payments.”
In short, even though Dinarany may have had exclusive use of the McLean home during
the period of separation, Stark was credited both for his post-separation mortgage payments and
for the use of his separate property for the down payment for the purchase of the home, and the
trial court’s equitable distribution of the McLean home was based on its consideration of each of
the statutory equitable distribution factors under Code § 20-107.3(E). Under these
circumstances, we cannot say that the trial court abused its discretion by concluding that any
liability for the forbearance should be split evenly between the parties – just as the net proceeds
would be split evenly after crediting Stark for several months of post-separation mortgage
payments and for his separate-property down payment. Because the trial court “consider[ed] all
the factors and base[d] its findings on credible evidence, we will not disturb its decision on
appeal.” Fadness, 52 Va. App. at 842.
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2. Dinarany’s Appeal (Dinarany’s Assignments of Error 5 and 6)2
In her fifth and sixth assignments of error, Dinarany contends that the circuit court “erred
in not awarding the Wife’s share of a marital portion of the Husband’s US Army retirement
pension plan” and “erred in the marital share of the Husband’s Thrift Savings Plan (TSP)[.]”
In its final order, the trial court found, “There was no evidence presented as to the marital
portion of Husband’s pension, or if any portion of this asset is marital property.” Therefore, the
trial court ruled, “Aside from the TSP distribution above, the parties shall keep any and all
retirement, pension, IRA or other funds/benefits currently held in their name, as their sole and
separate property, with no contribution from the other party.” Dinarany contends on appeal that
the trial court erred in concluding it could not determine the marital portion of Stark’s Army
retirement from the evidence in the record at trial. We agree.
The record in this case conclusively established that Stark and Dinarany were married in
December 2012, while Stark served in the military, and that Stark retired from the Army during
the marriage in late 2016. Neither the date of the marriage nor the date of Stark’s retirement
from the Army were disputed in this case. Stark’s answers to the interrogatories from Dinarany
also included the following statement: “My earning capacity is higher than Firouzeh’s due to my
work history. I served over 25 ½ years as an Army officer, only the last four of which were
2
Dinarany’s third and fourth assignments of error challenge equitable distribution, but
she states on brief,
Two issues for equitable distribution (Nos. 3 and 4) must be
conceded because the Wife’s previous counsel failed to present
facts, documents and/or arguments as evidence during the trial.
Therefore, a trial court’s abuse of discretion cannot be found in
these two equitable distribution issues because evidence was simply
not presented at trial for the Court to consider.
Given Dinarany’s explicit withdrawal of these assignments of error, we do not reach them on
appeal.
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served while married to her.” Thus, Stark’s own answer to an interrogatory that is in the record
plainly demonstrates that Stark and Dinarany were married for approximately four years while
Stark served in the military.
In equitable distribution matters, Code § 20-107.3(A) first requires the circuit court to
classify property as marital, separate, or hybrid (i.e., part marital and part separate). “Where
property is classified by the trial court as ‘part marital property and part separate property,’ the
trial court must determine the marital share of such property.” Starr v. Starr, 70 Va. App. 486,
488 (2019) (quoting Code § 20-107.3(A)(3)). In turn, Code § 20-107.3(G)(1) defines the
“marital share” of a retirement interest as “that portion of the total interest, the right to which was
earned during the marriage and before the last separation of the parties, if at such time or
thereafter at least one of the parties intended that the separation be permanent.”
Under Virginia law, it is well established that the marital portion of
a defined benefit plan is distinguished from the separate portion by
the application of a fraction, the numerator of which represents the
total time the pensioner is employed during the parties’ marriage,
and the denominator of which represents the total time the
pensioner is employed through the date of retirement.
Starr, 70 Va. App. at 492 (quoting Mann v. Mann, 22 Va. App. 459, 464 (1996)). Thus, “a trial
court in Virginia determines the marital share of military retirement by applying the
marital-share fraction.” Id. at 496.
Because the record in this case clearly establishes that the marriage between Stark and
Dinarany overlapped with Stark’s military service for approximately four years, the trial court
clearly erred in finding “[t]here was no evidence presented as to the marital portion of Husband’s
pension, or if any portion of this asset is marital property.” (Emphasis added). In short, the
record in this case compels us to conclude that the circuit court was plainly wrong in finding that
there was not enough evidence before it to determine whether “any portion” of Stark’s Army
pension is marital property because the circuit court had all of the information necessary to apply
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the marital-share fraction. See Starr, 70 Va. App. at 496; Code § 20-107.3(G). Therefore, we
reverse the circuit court’s decision and remand for it to calculate the marital portion of Stark’s
Army retirement pension in accordance with the martial-share fraction established by Virginia
law. See id.3 After determining the marital share, the trial court should then make an equitable
distribution of the marital share between the husband and the wife – with the wife receiving up to
but not more than 50% of the marital share of the husband’s Army pension. See Code
§ 20-107.3(G)(1).
C. Spousal Support
Stark next argues in his Assignments of Error 2 and 3 that the trial court abused its
discretion by awarding spousal support to Dinarany because Dinarany failed to meet her burden
of proving a need for spousal support. He also argues that the amount and length of duration of
the award constituted an abuse of discretion. In Dinarany’s appeal, she assigns error to the trial
court’s decisions related to spousal support in Assignments of Error 1, 2, and 7. Dinarany also
argues that the spousal support was wrongly computed – but as too little and not long enough in
duration. She also maintains that the trial court erred by erroneously imputing income to her
after finding that she was voluntarily unemployed.
However, in determining whether to make an award of spousal support and in calculating
the amount and duration of the award, Code § 20-107.1(E)(8) requires the circuit court to
consider “[t]he provisions made with regard to the marital property under [Code] § 20-107.3,”
the equitable distribution statute. Because we here reverse in part the trial court’s award of
3
In support of her assignment of error challenging the valuation of Stark’s Thrift Savings
Plan (TSP), Dinarany offers no argument on brief about what the correct valuation of Stark’s
TSP would have yielded. At oral argument before this Court, when asked specifically about her
assignment of error related to Stark’s TSP, counsel for Dinarany stated, “Our assignment of error
on the retirement is confined to the U.S. Army retirement pension plan.” Thus, this Court does
not reach Dinarany’s sixth assignment of error as it is now waived. See Rule 5A:20(e).
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equitable distribution, our case law is clear that, on remand, the trial court will also have to
thoroughly reassess its spousal support award and duration. See, e.g., Robinson v. Robinson, 46
Va. App. 652, 671 (2005) (en banc); see also Dixon v. Dixon, 71 Va. App. 709, 722 (2020).
Therefore, we do not reach either party’s assignments of error dealing with whether the trial
court correctly decided spousal support and the duration of it because we hold that the trial court
will have to reassess spousal support and its duration on remand anyway.
D. Attorney’s Fees
In her final assignment of error, Dinarany challenges the trial court’s allocation of
attorney’s fees. Both parties also request appellate attorney’s fees.
“[A]n award of attorney’s fees and costs is a matter for the trial court’s sound discretion
after considering the circumstances and equities of the entire case.” Jones v. Gates, 68 Va. App.
100, 105 (2017) (quoting Mayer v. Corso-Mayer, 62 Va. App. 713, 731 (2014)). “Such decision
‘is reviewable on appeal only for an abuse of discretion.’” Id. (quoting Graves v. Graves, 4
Va. App. 326, 333 (1987)). “An abuse of discretion occurs ‘only when reasonable jurists could
not differ’ as to the proper decision.” Allen v. Allen, 66 Va. App. 586, 601 (2016) (quoting
Brandau v. Brandau, 52 Va. App. 632, 641 (2008)). “Our use of this deferential standard of
review ‘rests on the venerable belief that the judge closest to the contest is the judge best able to
discern where the equities lie.’” Wynnycky v. Kozel, 71 Va. App. 177, 193 (2019) (quoting
Hamad v. Hamad, 61 Va. App. 593, 607 (2013)).
Dinarany argues that the trial court “erred in apportioning attorney’s fees awarded to the
Husband between the Wife and her former counsel[.]” She claims that the apportionment of
attorney’s fees was “inconsistent with the findings of fact that the Wife’s former counsel is
responsible for needlessly incurring attorney’s fees by his failure to produce the Wife’s
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discovery documents.” She therefore argues that the trial court “erred in not ordering [her]
former counsel to pay most of the attorney’s fees awarded to the Husband[.]”
Rule 4:12(b) permits a court in which an action is pending to make such orders “as are
just” with respect to the failure of a party to comply with a discovery order. Further, the rule
explicitly provides that “the court must require the party failing to obey the order or the attorney
advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.” As the Supreme Court has stated, “A trial
court generally exercises ‘broad discretion’ in determining the appropriate sanction for failure to
comply with an order relating to discovery.” Walsh, 260 Va. at 175 (quoting Woodbury, 239
Va. at 654). In sum, Rule 4:12 provides that it is within the trial court’s range of choice to
apportion attorney’s fees between “the party failing to obey the order or the attorney advising
him or both” as a sanction, and the trial court here stayed within its appropriate range of choice
by concluding that the unique circumstances of this case justified apportioning attorney’s fees
between Dinarany and her trial counsel. The trial court’s discretionary decision to apportion
attorney’s fees between Dinarany and her counsel (after taking the issue of attorney’s fees under
advisement) is certainly not outside the discretion due a trial judge, given “the venerable belief
that the judge closest to the contest is the judge best able to discern where the equities lie.”
Wynnycky, 71 Va. App. at 193 (quoting Hamad, 61 Va. App. at 607). Although the trial court
acknowledged that Dinarany’s counsel significantly contributed to the discovery violations in
this case, we simply cannot say that “‘reasonable jurists could not differ’ as to the proper
decision” regarding the apportionment of attorney’s fees between Dinarany and her trial counsel
in this case. Allen, 66 Va. App. at 601 (quoting Brandau, 52 Va. App. at 641). We therefore do
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not disturb the trial court’s judgment on appeal, and, accordingly, we affirm the trial court on
Dinarany’s ninth assignment of error.
Finally, both parties request attorney’s fees incurred in these appeals. This Court has
discretion to grant or deny attorney’s fees incurred on appeal. See Rule 5A:30(b); see also
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). In making such a determination, the
Court considers all the equities of the case. Rule 5A:30(b)(3). After considering the record
before us and all the equities of the case, we deny both parties’ requests for appellate attorney’s
fees. Dinarany prevails on several of the issues presented by these companion appeals, Stark
prevails on others, and the arguments presented on most of the assignments of error are certainly
not frivolous. In short, in exercising our discretion to determine whether to award appellate
attorney’s fees, we do not believe that the equities of this case justify such an award to either
party. Consequently, we deny both parties’ requests for appellate attorney’s fees.
III. CONCLUSION
In short, for the foregoing reasons, we do not disturb the trial court’s decision to include
the parties’ postnuptial agreement in evidence. Neither do we find that the trial court erred in
requiring the parties to share equally in the payments required by the mortgage forbearance on
the marital home. In addition, we find that the trial court did not abuse its discretion in its
apportionment of the attorney’s fees awarded to Stark between Dinarany and her trial counsel.
However, the circuit court was plainly wrong in concluding that it could not determine the
marital portion of Stark’s Army retirement pension from the record, because the circuit court had
enough information in the record here to determine the marital-share fraction established by
Virginia law. Therefore, on remand, the circuit court should determine the marital share of
Stark’s Army pension and then decide whether to award Dinarany a portion (but not more than
50%) of that marital share of Stark’s Army pension. Furthermore, because we are reversing the
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circuit court on one of its decisions regarding equitable distribution and remanding this case for
reconsideration of that decision consistent with this opinion, Virginia law requires that the trial
court must also reassess its award of spousal support upon remand. Therefore, we do not decide
whether the trial court correctly decided spousal support (and the duration of it) because it will
have to reassess its decision on spousal support on remand anyway. For all of these reasons, the
judgment of the circuit court is therefore affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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