Ghebru Woldemichael v. Nigist Asfaha ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
GHEBRU WOLDEMICHAEL
MEMORANDUM OPINION *
v. Record No. 1800-99-4 PER CURIAM
DECEMBER 28, 1999
NIGIST ASFAHA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
(Jahangir Ghobadi; Jahangir Ghobadi, P.C., on
brief), for appellant.
(Dennis M. Hottell; David Lawrence Ginsberg;
Dennis M. Hottell & Associates, P.C., on
brief), for appellee.
Ghebru Woldemichael (husband) appeals the decision of the
circuit court affirming, ratifying and incorporating a property
settlement agreement allegedly entered into by husband and
Nigist Asfaha (wife) and deciding other issues. On appeal,
husband contends that the trial court erred by: (1) affirming,
ratifying and incorporating into its order of May 19, 1999 the
Property Settlement Agreement dated October 5, 1996; (2) denying
his request for a continuance of the May 19, 1999 hearing; and
(3) making its equitable distribution determination and granting
wife attorney's fees. In her response, wife seeks an award of
appellate attorney's fees. Upon reviewing the record and briefs
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
"In reviewing an equitable distribution award on appeal, we
recognize that the trial court's job is a difficult one.
Accordingly, we rely heavily on the discretion of the trial
judge in weighing the many considerations and circumstances that
are presented in each case." Artis v. Artis, 4 Va. App. 132,
137, 354 S.E.2d 812, 815 (1987). The judgment of a trial court
sitting in equity, "when based upon an ore tenus hearing, is
entitled to great weight and will not be disturbed on appeal
unless plainly wrong or without evidence to support it."
Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199
(1986).
Property Settlement Agreement
Husband contends that the trial court erred when it entered
an order on May 19, 1999 affirming, ratifying, and
incorporating, but not merging, a property settlement agreement
signed by the parties on October 5, 1996. Husband argues that
the agreement was not valid and not final. We find no merit in
husband's contention.
Husband did not refer to the agreement in his bill of
complaint filed July 1, 1997. In her answer, wife prayed that
the trial court affirm, ratify, and incorporate, but not merge,
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the parties' agreement signed on October 5, 1996, copies of
which were attached to her answer. Husband responded to wife's
answer, stating that the "alleged property settlement agreement
was unofficial, unfair, incomplete and improper." Wife did not
refer to the agreement in her answer to husband's amended bill
of complaint. The commissioner in chancery, who heard evidence
on the grounds for divorce, reported that the "parties intend to
request relief from this Court concerning outstanding property
issues, there was no signed Property Settlement Agreement
presented at this hearing."
The parties introduced evidence concerning the agreement at
the May 19, 1999 hearing. Wife produced a copy of the agreement
and a translation. Both parties testified, as did a third
witness who was the "chief mediator" at the time the agreement
was executed. Husband did not contest that he drafted the
agreement. Evidence indicated that the parties willingly signed
the agreement in the presence of the three "mediation members."
The document itself, as translated, contained a listing of the
parties' property and provided that the parties "agreed to share
all the above equally and not to claim anything else and both
signed the agreement." While husband alleged at the May 19,
1999 hearing that he refused to sign the final agreement several
days later, the evidence proved that the agreement signed by the
parties was a final agreement.
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Based upon the written documents and the testimony heard by
the trial court ore tenus, the court determined that the
agreement was valid and enforceable. "The language of Code
§ 20-109.1 gives the trial court discretion in determining
whether a property settlement agreement should be incorporated
by reference into a final decree of divorce. Absent an abuse of
discretion, the trial court's decision must be upheld on
appeal." Forrest v. Forrest, 3 Va. App. 236, 239, 349 S.E.2d
157, 159 (1986). Evidence supported the trial court's decision.
We find no error in the trial court's determination.
Denial of Continuance
Husband also contends that the trial court erred when it
refused to grant his motion for a continuance made at the May
19, 1999 hearing. In a Motion for Summary Judgment previously
filed with this Court, wife argues that this question cannot be
addressed without the transcript of the April 30, 1999 hearing.
This transcript was not timely filed and is not a part of the
record on appeal. We find the record on appeal is adequate for
us to address husband's contention on the merits and, therefore,
deny wife's Motion for Summary Judgment.
We find no error in the trial court's denial of husband's
motion for a continuance. While we do not have the transcript
of the April 30, 1999 hearing before us, the record demonstrates
that, by order entered that day, the trial court continued
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wife's Motion to Incorporate Property Settlement Agreement until
May 19, 1999. The trial court ordered husband to respond to
wife's motion by May 7, 1999. Husband signed this order. The
trial court also entered on April 30, 1999 a separate order
allowing husband's counsel to withdraw and expressly providing
"[t]here will be no continuances of any court dates set as of
4/30/99." Husband also signed this order under the endorsement
"Seen." In addition, as noted by the court during the hearing
on May 19, 1999, husband had notice of wife's reliance upon the
agreement when she filed her answer in 1997.
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of a trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994). The record demonstrates that husband
was present at the hearing at which the trial court continued
the issue of the incorporation of the property settlement
agreement. Upon review of the record, we cannot say that the
trial court's refusal to grant husband an additional continuance
on May 19, 1999 was an abuse of discretion. Therefore, we find
no merit in husband's contention.
Equitable Distribution
Husband contends that the trial court erred by entering an
equitable distribution order pursuant to the terms of the
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October 1996 agreement and by awarding wife her attorney's fees.
We find no error. See Code § 20-109.1.
Pursuant to the terms of the parties' agreement, the trial
court ruled that the former marital residence was jointly held
marital property that was to be equally divided between the
parties. Accordingly, the trial court entered an equitable
distribution order dividing the marital property listed in the
agreement and remaining in the marital estate at the time of the
hearing.
Husband contends that the trial court erred by failing to
consider his testimony concerning the value of the marital
residence. He testified that the house was listed for sale at
$549,000. Evidence established that the house did not sell at
that price and, in fact, that the sale price was reduced to
$525,000 by April 30, 1998. Wife testified that the marital
residence was worth between $480,000 and $500,000. She also
presented evidence that the 1997 tax assessed value of the home
was $435,530. Neither party presented a real estate appraisal
for the residence. The trial court's determination that the
marital residence was worth $500,000 was supported by the
evidence presented. "We will not disturb the trial court's
finding of the value of an asset unless the finding is plainly
wrong or unsupported by the evidence." Shooltz v. Shooltz, 27
Va. App. 264, 275, 498 S.E.2d 437, 442 (1998).
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While husband also asserts that the trial court erred by
failing to determine the value of the marital residence as of
the time of the hearing, the record does not support this
contention. The trial court determined the current value of the
marital residence, limited by the scope of the evidence
presented by the parties.
We find no error in the trial court's order directing
husband to reimburse wife for his share of the mortgage payments
made by wife since the execution of their agreement. Under the
terms of the agreement, the parties shared equally in the loan
for this property. Husband failed to cite any evidence in the
record supporting his contention that wife intentionally failed
to sell the marital residence. See Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992). Husband contends that
"equity and spirit of equal division of assets and debts"
reflected in the parties' agreement required wife to reimburse
husband for mortgage and maintenance attributable to unspecified
property possessed by husband following their separation.
However, no other property remaining in the marital estate at
the time of the hearing was identified in the parties'
agreement. Husband failed to present sufficient evidence to
warrant an award of these unspecified amounts contrary to the
express language of the parties' agreement.
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Husband failed to object to the award of attorney's fees to
wife, either in the list of objections that accompanied the
endorsement of the June 9, 1999 order or in his Motion For
Reconsideration. "No 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, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Rule 5A:18. Neither
good cause nor the ends of justice warrant our consideration of
this objection.
We deny wife's request for attorney's fees incurred in this
appeal. See O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479
S.E.2d 98, 100 (1996).
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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