Lida Saeedian v. Richard M. Millman ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
LIDA SAEEDIAN
v. Record No. 0476-00-4
RICHARD M. MILLMAN MEMORANDUM OPINION *
PER CURIAM
LIDA SAEEDIAN AUGUST 15, 2000
v. Record No. 0722-00-4
RICHARD M. MILLMAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
(Jahangir Ghobadi; Jahangir Ghobadi, P.C., on
briefs), for appellant.
(Lauren E. Shea; Sherman, Meehan, Curtin &
Ain, P.C., on briefs), for appellee.
In Record No. 0476-00-4, Lida Saeedian (wife) appeals the
decision of the circuit court granting a final decree of divorce
to Richard M. Millman (husband). Specifically, wife contends
that the trial court erred by (1) overruling her objections to
the incorporation of the parties' Property Settlement Agreement
(agreement) into the final decree on the grounds of
non-disclosure, misrepresentation and fraud; (2) denying her
motion to suspend and set aside the final decree; and (3)
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
awarding husband $1,000 in attorney's fees as a sanction against
wife. In Record No. 0722-00-4, wife contends that the trial
court erred by (1) denying her petition for a rule to show cause
seeking to enforce paragraph "a" of the parties' agreement; (2)
modifying the final decree and the parties' agreement by placing
$150,000 in an interest-bearing account established by the trial
court without releasing the funds to wife; (3) modifying the
final decree and the parties' agreement by ordering husband to
pay certain payments to the account rather than directly to
wife; and (4) abusing its discretionary authority by certain
actions. Upon reviewing the record and briefs of the parties,
we conclude that these appeals are without merit. Accordingly,
we summarily affirm the decision of the trial court. See Rule
5A:27.
"Under familiar principles, we view the evidence and all
reasonable inferences in the light most favorable to the
prevailing party below . . . ." Lutes v. Alexander, 14 Va. App.
1075, 1077, 421 S.E.2d 857, 859 (1992).
"The burden is on the party who alleges
reversible error to show by the record that
reversal is the remedy to which he is
entitled." We are not the fact-finders and
an appeal should not be resolved on the
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basis of our supposition that one set of
facts is more probable than another.
Id. (citations omitted). 1
Background
The parties were married in 1992 and separated in June 1998
when wife moved out of the marital home with her children from a
previous marriage. The evidence proved that husband helped wife
obtain custody of her children. Wife moved out of the marital
bedroom in 1993. Husband provided the majority of the financial
support for wife and the children throughout the marriage until
the time of the separation.
Wife's first amended bill of complaint alleged constructive
desertion by husband as of 1998. Subsequently, the bill of
complaint was amended to allege no-fault grounds, which the
commissioner in chancery found supported by the evidence.
The parties engaged in extensive discovery prior to the
execution of the agreement.
Record No. 0476-00-4
Wife contends that the trial court erred by overruling her
objections to entry of the final decree of divorce and the
incorporated, but not merged, settlement agreement signed by the
parties on November 16, 1999. For similar reasons, wife
1
The transcript of the hearing held on January 21, 2000 was
not timely filed and thus is not part of the record on appeal.
See Rule 5A:8(a). Therefore, we do not consider it.
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contends that the trial court erred by denying her motion to set
aside the final decree of divorce. We find no error.
Wife alleged that husband committed intrinsic and extrinsic
fraud in procuring the agreement. In her motion to set aside
the final decree, she contended that, through non-disclosure,
misrepresentation, and fraud, husband induced wife to sign the
agreement. Wife alleged that husband failed to disclose his
receipt of between seven and nine million dollars shortly after
the agreement was signed. In his response to wife's motion,
husband argued that he had fully disclosed all information to
wife prior to the time the agreement was executed.
At the December 17, 1999 hearing, wife's new counsel
admitted that he was relying on information told to him and that
he was "in no position at this state . . . to get the chance to
verify this fact." Because the case had been vigorously
litigated for eighteen months, the trial court ruled that it
would enter the final decree of divorce, but noted that wife's
new counsel had twenty-one days to seek to set aside the decree.
The trial court also warned counsel that it would award
sanctions if wife's allegations were found to be
unsubstantiated.
Subsequently, on January 21, 2000, the trial court
conducted an ore tenus hearing on wife's motion to set aside the
final decree. Following the hearing, the trial court ruled
that, assuming arguendo there was merit in wife's underlying
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allegations, the company stock on which wife's claim was based
was husband's separate property and, therefore, was not
available for equitable distribution. The court also found that
any post-agreement payment received by husband was too
speculative to be the basis of a spousal support award.
"'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. Fraud cannot be presumed.'" Aviles v. Aviles, 14
Va. App. 360, 366, 416 S.E.2d 716, 719 (1992) (citation
omitted). The party alleging fraud "has 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.' The fraud must be proved by clear and convincing
evidence." Batrouny v. Batrouny, 13 Va. App. 441, 443, 412
S.E.2d 721, 723 (1991) (quoting Winn v. Aleda Constr. Co., 227
Va. 304, 308, 315 S.E.2d 193, 195 (1984)).
In the record before us, the trial court did not determine
whether there was evidence of misrepresentation or nondisclosure
because it found that wife's allegations, even if supported by
evidence, were not material, as they would affect neither
equitable distribution nor spousal support. The record
demonstrates that the parties engaged in extensive and
substantial disclosure concerning husband's business interests,
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including his involvement in Trans World Communications (TWC),
and that husband disclosed to wife pertinent information as late
as one month before the agreement was signed. Cf. Webb v. Webb,
16 Va. App. 486, 431 S.E.2d 55 (1993) (setting aside property
settlement agreement due to constructive fraud where husband, an
attorney, drafted the agreement, discouraged wife from obtaining
independent legal advice, and failed to disclose his pension).
In answers in early November 1999 to supplemental
interrogatories, wife indicated that she was aware of the
pending liquidation of Leap Wireless International, noting that
"[t]hey expect to liquidate Transworld assets. Number between
$10-$20 million are mentioned." Moreover, wife's claim of
nondisclosure and misrepresentation rests mainly on transactions
that occurred after the parties executed their agreement. While
wife purports to show misrepresentations and nondisclosure by
husband prior to the time the agreement was executed, there is
nothing to which she refers that is demonstrably a knowingly
false representation by husband of a material fact. Thus, the
evidence falls short of the clear and convincing standard
necessary to prove fraud. Therefore, we find no error in the
trial court's decision to overrule wife's objections to the
final decree of divorce and to deny her motion to set aside the
decree.
Wife also appeals the decision of the trial court to award
husband $1,000 in attorney's fees. The order dated January 21,
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2000 states that the fees are awarded "for the reasons stated in
open court." The transcript of the January 21, 2000 hearing,
however, was not timely filed and is not part of the record on
appeal. It is clear from the record, however, including the
transcript of the December 17, 1999 hearing, that the trial
court cautioned wife that sanctions would be awarded if it found
no merit to wife's motion.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). "In determining whether an award of attorney's fees is
appropriate, the focus should be on the parties' bona fide claims
and not on the parties' ability to predict in advance of trial the
exact ruling of the court." Richardson v. Richardson, 30 Va. App.
341, 352, 516 S.E.2d 726, 731 (1999). We find no abuse of
discretion in the trial court's decision to award husband $1,000
in attorney's fees.
Record No. 0722-00-4
In this appeal, wife contends that the trial court erred by
ordering payment of the amounts due under the parties' agreement
to an interest-bearing account established by the court. The
trial court's order of March 6, 2000 provided, in pertinent part:
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ADJUDGED, ORDERED and DECREED that the funds
deposited by [husband] into the
interest-bearing account established by this
Court shall be released to [wife] if she
does not prevail on her appeal(s), or any
other avenues to attack, direct or
collateral, relating to the Final Decree of
Divorce entered on December 22, 1999, the
Order dated January 20, 2000, the Order
dated January 21, 2000, or any part thereof,
and does not succeed in otherwise altering
or setting aside said Final Decree of
Divorce, the Order dated January 20, 2000,
the Order dated January 21, 2000 or the
parties' Agreement dated November 16, 1999,
or any part thereof, and shall be released
to [husband] if said Decree or Orders are
vacated or set aside . . . .
We find no merit in wife's challenges to the action of the
trial court in safeguarding the amounts due under the agreement
that wife was seeking to set aside. She was advancing
contradictory positions, seeking the benefits of the contract
while simultaneously alleging that the contract was
unenforceable due to fraud. "It is well established in Virginia
that a litigant will be precluded from taking inconsistent and
mutually contradictory positions." Dickson v. Dickson, 23 Va.
App. 73, 80, 474 S.E.2d 165, 168 (1996) (citing Winslow, Inc. v.
Scaife, 224 Va. 647, 653, 299 S.E.2d 354, 358 (1983), and Berry
v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 795 (1983)).
We also find no merit in wife's contention that the trial
court's actions impermissibly modified the provisions of the
contract. The trial court's order addressed the enforcement of
the agreement and was an appropriate means of protecting the
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rights of both parties. That order in no way diminished the
amount to which wife was entitled under the agreement, if she
was unsuccessful in her attempts to set the agreement aside.
Finally, we find no merit in wife's five alleged instances
of abuse of discretion by the trial court. Contrary to wife's
characterization, the trial court did not deny wife enforcement
of the final decree in violation of Code § 20-109.1. The trial
court's order protected wife's rights under the agreement,
despite her inconsistent positions of seeking enforcement of the
agreement that she also sought to set aside.
There is no evidence to support wife's claim that the trial
court infringed on wife's right to appeal. On the contrary, the
trial court expressed its recognition of her rights.
While wife claims that she was denied access to her
property, the funds to which she asserted a claim were hers only
pursuant to the terms of the contract which she sought to
repudiate.
The trial court did not err by refusing to find husband in
contempt. The record proves that husband made the spousal
support payments required under the agreement, including the
$5,000 payment towards wife's attorney's fees. In contrast,
wife gave abundant notice that she repudiated the contract. It
was not bad faith on the part of husband to withhold full
performance of his unilateral obligations under the agreement in
light of wife's challenges. It was clearly not an abuse of
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discretion on the part of the trial court to ensure both parties
would be safeguarded in the event the agreement was upheld on
appeal.
We also find no abuse of discretion in the trial court's
denial of attorney's fees to wife. At the last possible moment,
wife sought to set aside an agreement reached following extensive
negotiations and litigation, alleging unsubstantiated claims of
fraud. Based upon the questionable good faith merit of wife's
claims, we find no error in the trial court's denial of attorney's
fees. See Richardson, 30 Va. App. at 352, 516 S.E.2d at 731.
Appellate Attorney's Fees
Upon husband's motions, we hold that he is entitled to
attorney's fees for these appeals. Accordingly, we remand these
cases to the trial court solely to award reasonable attorney's
fees in favor of husband for these appeals.
For these reasons, we summarily affirm the decisions of the
circuit court and remand for the limited purpose of awarding
attorney's fees.
Affirmed and remanded.
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