Bindu Bajgain v. Devendra Bajgain

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and McCullough
PUBLISHED
Argued at Alexandria, Virginia
BINDU BAJGAIN
OPINION BY
v. Record No. 1127-14-4 JUDGE STEPHEN R. McCULLOUGH
MARCH 17, 2015
DEVENDRA BAJGAIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert J. Smith, Judge1
Sequitta Banks (B&B Law Group, PLC, on briefs), for appellant.
Amanda P. DeFede (McIntyre DeFede Law PLLC, on brief), for
appellee.
Bindu Bajgain, wife, appeals from several rulings of the Fairfax County Circuit Court in
connection with her divorce from her husband, Devendra Bajgain. While their divorce suit was
pending in Fairfax County, wife initiated parallel proceedings in Nepal for divorce and for the
distribution of marital assets. This appeal turns on the meaning of a stipulation the parties made
concerning the proceedings in Nepal. For the reasons detailed below, we affirm the judgment of
the circuit court.
BACKGROUND
On appeal, we view the evidence in the light most favorable to husband, the prevailing
party below, and grant him “all reasonable inferences fairly deducible therefrom.” Anderson v.
Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).
1
Judge Smith signed the final decree of divorce. Judge David S. Schell entered the
orders at issue, including the October 2, 2013 order.
Husband and wife are originally from Nepal. On April 20, 2011, husband filed for
divorce in Fairfax County Circuit Court. Wife filed an answer and a cross-complaint, in which
she sought, among other things, the determination of separate and marital property, the valuation
of real and personal property, the equitable distribution of marital property, and spousal support.
On June 10, 2011, the circuit court entered a pendente lite consent order, awarding wife $1,500
spousal support per month. The court scheduled an equitable distribution hearing for April 11,
2012.
Wife then initiated several legal proceedings in the Morang District Court, in Nepal. On
August 30, 2011, wife filed for the division of marital property. About eight months later, on
April 8, 2012, she filed for divorce. Under Nepali law, divorce is a separate legal action from the
division of the parties’ marital property.2 Wife did not request child support in Nepal. Sometime
before August 20, 2012, wife also filed three separate claims alleging that husband had engaged
in forgery. Wife alleged husband fraudulently transferred marital funds to his relatives.3 These
transfers were all made shortly before, or shortly after, husband filed for divorce in Fairfax
County. Husband argued that he transferred the funds in repayment of loans. The Morang
District Court ultimately dismissed wife’s forgery claims, finding insufficient evidence of fraud.
On May 25, 2012, husband, citing the proceedings in Nepal, filed a motion in Fairfax
County Circuit Court to stay the equitable distribution proceeding and to modify the pendente
lite support. On August 20, 2012, the parties reached a stipulation concerning the effect of the
2
The Morang District Court awarded wife a divorce, which she then appealed. The
appellate court in Nepal vacated the divorce. On April 1, 2013, wife ultimately withdrew her
request for divorce from the Morang District Court.
3
The record is not clear precisely when wife filed these forgery claims, but she admitted
they were filed before the circuit court stayed the equitable distribution proceeding on August
20, 2012.
-2-
proceedings in Nepal on the ongoing litigation in Fairfax County. Before reading the
stipulation, the circuit court stated, “I am going to ask the parties to listen very carefully to what
the attorneys say. If there is anything they say that is not in accord with their agreement, they
should contact either counsel or associate counsel to let them know immediately upon mistake.”
Counsel for wife then read the following stipulation into the record:
This matter is stayed, pending a resolution of Ms. Bajgain’s
claims now pending before the Court of Nepal. After these matters
are adjudicated or dismissed, the parties stipulate the court’s
power, authority and jurisdiction is hereby reserved and retained to
adjudicate either party’s claims for equitable distribution pursuant
to 20-107.3, and/or spousal support pursuant to 20-107.1, or any
other related matters with regard to equitable distribution, spousal
support or child support.
Now, either party retains their rights to argue such legal or
equitable claims they may have in any further hearing, but the
power and authority and jurisdiction of this court to adjudicate
equitable distribution and spousal support is specifically retained.
Now, for example, with regard to the issues of res judicata,
if Ms. Bajgain brings a divorce decree from Nepal that totally
adjudicates a divorce, then there is no res judicata argument as to
equitable distribution, spousal support or child support.
However, if the courts of Nepal adjudicate the ownership of
certain property in Nepal, then this court wouldn’t relitigate those
claims. Now, like for example, if they adjudicate a piece of
property is divided in a certain way, this court would not re-
adjudicate that.
The court further inquired, “If the court in Nepal divides all of the property and makes
resolution of spousal support and child support, is that res judicata on this court, according to
your agreement?” Husband’s counsel responded, “Your Honor, it hypothetically is, given
[wife’s counsel’s] hypothetical and the application of res judicata, which is simply that it was
fully litigated in another jurisdiction to a Final Order. So there would be nothing left for this
court to be determined.” Wife’s counsel added that, “[i]f the court in Nepal adjudicates the
property case and sets forth orders regarding certain pieces of property, then those pieces of
-3-
property would not be re-litigated in this court.” On August 20, 2012, the court entered an order
incorporating the parties’ agreement by reference. Nine months later, on May 7, 2013, the
Morang District Court issued a final order dividing the parties’ property.
On August 12, 2013, husband filed a motion in Fairfax County, to dismiss wife’s claim
for equitable distribution and also to request sanctions. He argued that, based on the Nepali
court’s apportionment of marital property and the parties’ stipulation concerning the preclusive
effect of the proceedings in Nepal, the circuit court no longer had jurisdiction over equitable
distribution. Wife argued that dismissal was inappropriate because she sought only division of
real property located in Nepal and had not asked for spousal support. Each party also argued that
the other had impermissibly come into equity with unclean hands.
On August 15, 2013, the court heard argument and testimony concerning husband’s
motion to dismiss and for sanctions. Husband offered testimony from Khagendra Gherti
Chhetry, a New York attorney also licensed to practice in Nepal. He explained that Nepali law is
based on statutory enactments and on the common law of England. Regarding wife’s forgery
claims, he noted that the Nepali court considered evidence from fourteen witnesses and argument
from both parties’ counsel before concluding that wife had not proven her case.
Regarding the distribution of marital property, Chhetry testified that the Morang District
Court “considered considerably all of the assets of the parties including what they have here [in
the United States], and they have made a decision accordingly.” He explained that, under Nepali
law, a spouse can continue to receive spousal support so long as she does not take any property
distribution. Once she takes her share of the property, however, spousal support ends. Here,
wife took property. Furthermore, under the law of Nepal, the court distributed property that was
given to husband by his relatives, including gifts given before the marriage. The Nepali court
also awarded wife property husband had received by inheritance. Husband’s pension, however,
-4-
was treated as his separate property, and it was not subject to distribution. Chhetry testified that
the Nepali court “decided everything except the child support.”
Wife’s expert, a licensed Nepali attorney and part-time professor, testified that, in a
domestic proceeding referred to as coparency, a court awards property to the husband and wife
as well as to the children. Wife would receive one fourth of husband’s property, and each of the
Bajgains’ two sons would receive one fourth. According to wife’s expert, the Nepali court did
not divide any property located in the United States.
The circuit court announced its decision on August 16, 2013. First, the court found “that
the decisions of the court in Nepal would be honored by the parties . . . certainly as to all
property.” The court explained that Nepal’s property distribution laws operate differently from
Virginia’s. Wife received twenty-five percent of the marital estate. The marital estate, however,
included property that is generally considered separate in Virginia. For example, the marital
estate included gifted and inherited property. On the other hand, Nepali law considers husband’s
pension to be his separate property, and it was not subject to division. Also, wife’s decision to
seek property distribution in Nepal precluded her from receiving spousal support. The circuit
court found that “the proceedings in Nepal were fair and the wife was given an opportunity to be
fully heard and present evidence and present witnesses.”
On October 2, 2013, the court entered an order memorializing its decision, which
incorporated by reference a transcript of the ruling announced from the bench August 16, 2013.
The court held that wife was barred from requesting spousal support and equitable distribution
and that the Morang District Court’s order dated May 7, 2013, should be given “[f]ull faith and
credit.” The court further held that, “[u]nder the principles of res judicata and unclean hands
[wife’s] request for relief under the cross-complaint for spousal support and equitable
distribution of property, including waste, are barred because they have been fully litigated by a
-5-
Court of competent jurisdiction.” The parties submitted an agreed upon disposition for child
support, which the court entered on October 4, 2013.
On October 21, 2013, wife filed a notice of appeal with this Court.4 On December 27,
2013, wife informed this Court, by letter, of her desire to withdraw the appeal. According to
wife, on January 29, 2014, she delivered a motion to withdraw her appeal. On February 4, 2014,
husband filed a motion to dismiss the appeal, with prejudice, for wife’s failure to timely file
transcripts. On February 21, 2014, this Court dismissed the appeal, Bajgain v. Bajgain, No.
2023-13-4, for failure to timely file the notice of appeal with the circuit court.5 The order did not
specify whether the dismissal was with or without prejudice.
On May 28, 2014, the circuit court entered a final decree of divorce. The present appeal
followed.
ANALYSIS
I. THE APPEAL IS PROPERLY BEFORE US.
As a threshold matter, husband argues that we must dismiss the appeal for two reasons:
first, because our dismissal of wife’s previous appeal bars the present appeal and, second,
because wife’s written objections to the October 2, 2013 order are insufficient to preserve the
issues she raises on appeal.
A. Wife’s first appeal does not foreclose the present appeal.
This Court is a court of limited jurisdiction. “Absent subject matter jurisdiction, this
Court cannot address and resolve the merits of a claim on appeal.” Chaplain v. Chaplain, 54
4
We may take judicial notice of our records. Wright v. Commonwealth, 53 Va. App.
266, 281, 670 S.E.2d 772, 779 (2009).
5
Our records do not reflect any notice of appeal filed with the circuit court in connection
with wife’s first appeal. See Rule 5A:6 (notice of appeal must be filed with the “clerk of the trial
court”).
-6-
Va. App. 762, 767, 682 S.E.2d 108, 110 (2009). Ordinarily, the entry of a final order is a
necessary prerequisite for this Court to resolve the merits of an appeal. See Code
§ 17.1-405(3)(b), (c), (d) (“Any aggrieved party may appeal to the Court of Appeals from . . .
[a]ny final judgment, order, or decree of a circuit court involving . . . [d]ivorce; . . . [c]ustody; . . .
[s]pousal or child support; . . . .”). Code § 17.1-405(4)(ii), however, authorizes parties to appeal
an “interlocutory decree or order” when the order has “adjudicat[ed] the principles of a cause.”
The order dated October 2, 2013, indisputably, was not a final order. Husband argues, however,
that this order was an appealable interlocutory order that “adjudicated the principles of the
cause” and, consequently, our dismissal of the appeal was on the merits. We disagree.
“[I]nterlocutory appeals often result in inefficiency and unnecessary delay and expense.”
de Haan v. de Haan, 54 Va. App. 428, 441, 680 S.E.2d 297, 304 (2009). In light of these
considerations, we have recognized that “[s]ignificant policy interests counsel against frequent
interlocutory appeals and, therefore, finding an order adjudicates ‘the principles of a cause.’” Id.
at 440, 680 S.E.2d at 303. For an order to “adjudicate the principles of a cause” it must
determine that “the rules or methods which the rights of the parties
are to be finally worked out have been so far determined that it is
only necessary to apply those rules or methods to the facts of the
case in order to ascertain the relative rights of the parties, with
regard to the subject matter of the suit.”
Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991) (quoting Lee v. Lee, 142
Va. 244, 252-53, 128 S.E. 524, 527 (1925)). The interlocutory order must address “the chief
object[s] of the suit.” Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 713 (1994)
(citation and internal quotation marks omitted). “Typically, [in divorce matters,] such goals
include obtaining a divorce, determining custody of children, deciding whether to grant child or
spousal support, and resolving equitable distribution.” de Haan, 54 Va. App. at 439, 680 S.E.2d
at 303.
-7-
Virginia’s appellate courts have previously considered whether an order in a divorce suit
is one that “adjudicates the principles of a cause.” See, e.g., Lewis v. Lewis, 271 Va. 520,
527-28, 628 S.E.2d 314, 318 (2006) (order dismissing husband’s cross-bill for annulment did not
adjudicate the principles of a cause when wife’s divorce complaint seeking divorce and equitable
distribution was still pending); Webb v. Webb, 13 Va. App. 681, 682-83, 414 S.E.2d 612, 613
(1992) (interlocutory order finding a separation agreement invalid was not appealable because
“[t]he matter was still in the breast of the court and subject to alteration and amendment by the
judge before entering an appealable order” and the court still had to address the remaining issues,
including the grounds for divorce and equitable distribution (alteration in original) (citations and
internal quotation marks omitted)); Erikson, 19 Va. App. at 391, 451 S.E.2d at 713 (decree
upholding the validity of the marriage did not adjudicate the principles of a cause because the
ruling did not determine whether a divorce would be granted or on what grounds). But see
Chaplain, 54 Va. App. at 768-69, 682 S.E.2d at 111 (order upholding a premarital agreement
adjudicated the principles of a cause when the parties stipulated that the grounds for divorce
were not contested and the sole issue to be decided by the circuit court was the validity of the
premarital agreement).
Wife’s initial appeal in this matter was not a permissible interlocutory appeal because the
October 2, 2013 order did not “adjudicate the principles of a cause.” That order did not award a
divorce, the chief object of the suit, nor did it decide the issue of child support. Wife’s appeal
was premature: the order appealed from was neither a final order nor did it adjudicate the
principles of a cause. Accordingly, this Court lacked subject matter jurisdiction to adjudicate the
appeal. Lewis, 271 Va. at 528, 628 S.E.2d at 319. Dismissal of such an appeal was without
prejudice and did not bar wife from appealing later, upon entry of a final order. Id. at 528 n.5,
-8-
628 S.E.2d at 319 n.5; see also Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342. That is what
wife did. The present appeal is properly before us.
B. Wife preserved her arguments for appellate review.
Wife’s counsel endorsed the final decree of divorce with the following notation:
SEEN AND objected to on the grounds that the decree
incorporates the October 2, 2013, order which was issued contrary
to law. Defendant requested that the appeal be withdrawn on
December 27, 2013, prior to the Court’s dismissal without
prejudice on February 21, 2014.
Husband argues that wife’s failure to note an objection on the October 2, 2013 order, and the
objection she did note on the final divorce decree, are inadequate to preserve her assignments of
error. According to husband, wife failed to contemporaneously object to the circuit court’s order
as required by Rule 5A:18. He adds that wife failed to provide “a clear and exact reference to
the page(s) of the transcript, written statement, record, or appendix where each assignment of
error was preserved in the trial court.” Rule 5A:20(c). Wife does direct us, in great detail, to the
places where she preserved her arguments below. Husband argues, however, that these
objections did not occur “at the time of the court’s oral ruling on August 16, 2013 or any date
thereafter.”
Husband’s arguments are without merit. First, wife’s trial memorandum in opposition to
husband’s motion to dismiss raised the arguments she presses before this Court. Wife’s counsel
also presented oral argument and evidence in support of her position. The fact that those
objections were not reiterated in a formal way upon entry of various orders is of no consequence.
Under Code § 8.01–384(A),
No party shall be deemed to have agreed to, or acquiesced in, any
written order of a trial court so as to forfeit his right to contest such
order on appeal except by express written agreement in his
endorsement of the order. Arguments made at trial via written
pleading, memorandum, recital of objections in a final order, oral
argument reduced to transcript, or agreed written statements of
-9-
facts shall, unless expressly withdrawn or waived, be deemed
preserved therein for assertion on appeal.
The Supreme Court of Virginia has repeatedly held that,
once a litigant informs the circuit court of his or her legal
argument, [i]n order for a waiver to occur within the meaning of
Code § 8.01-384(A), the record must affirmatively show that the
party who has asserted an objection has abandoned the objection or
has demonstrated by his conduct the intent to abandon that
objection.
Kellermann v. McDonough, 278 Va. 478, 491, 684 S.E.2d 786, 792 (2009) (alteration in
original) (internal quotation marks omitted) (quoting Helms v. Manspile, 277 Va. 1, 6, 671
S.E.2d 127, 129 (2009)). The Supreme Court reiterated those principles most recently in
Cashion v. Smith, 286 Va. 327, 333-34, 749 S.E.2d 526, 529-30 (2013).
We have construed Rule 5A:18 according to its purposes, namely, “to alert the trial judge
to possible error so that he or she may consider the matter and take corrective action necessary to
avoid unnecessary appeals, reversals and mistrials.” Martin v. Commonwealth, 13 Va. App. 524,
534, 414 S.E.2d 401, 406 (1992) (en banc). “In addition, a specific, contemporaneous objection
gives the opposing party the opportunity to meet the objection at that stage of the proceeding.”
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Wife’s written and oral
arguments satisfied Rule 5A:18.
Wife’s arguments are not procedurally defaulted. Accordingly, we proceed to address the
merits of her contentions.
II. WIFE AGREED TO BE BOUND BY THE DECISIONS OF THE NEPALI COURT.
A. Wife’s narrow reading of the parties’ stipulation must be rejected.
Wife contends in her second assignment of error that the circuit court erred in finding that
she agreed to be bound by the decisions of the court in Nepal. According to her, the parties
stipulated that the circuit court’s power, authority, and jurisdiction were reserved and retained to
- 10 -
adjudicate equitable distribution under Code § 20-107.3, spousal support under Code § 20-107.1,
or any other related matters with regard to equitable distribution, spousal support, or child
support.
As a general proposition, Virginia courts look “with favor upon the use of stipulations . . .
which are designed to narrow the issues and expedite the trial or settlement of litigation.”
McLaughlin v. Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970).6 Here, the parties
disagree about the scope of the stipulation they made. Because the stipulation was the subject of
a court order, the court was, in effect, construing the scope of its own order. We “give deference
to the interpretation adopted by the lower court” of its own order. Rusty’s Welding Serv., Inc. v.
Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc). That interpretation,
however, must be reasonable, and we will “apply an abuse of discretion standard.” Roe v.
Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 528 (2006).
Wife stresses isolated segments of the stipulation in support of her argument that the
stipulation should be given a narrow reading. For example, she points to the following: “[T]he
parties stipulate the court’s power, authority and jurisdiction is hereby reserved and retained to
adjudicate either party’s claims for equitable distribution pursuant to 20-107.3, and/or spousal
support pursuant to 20-107.1.” The remainder of the stipulation clarifies, however, that if the
Nepali court were to divide the marital property, its decision would be binding. The court
pointedly asked counsel, “If the court in Nepal divides all of the property and makes resolution
of spousal support and child support, is that res judicata on this court, according to your
agreement?” (Emphasis added.) Counsel for both wife and husband answered in the affirmative.
6
Although their stipulation was not written or signed, as contemplated by Code
§ 20-109(C), it remained binding on the parties once the circuit court accepted it and
incorporated it by reference in a court order they and their counsel endorsed.
- 11 -
Husband’s counsel responded, “Your Honor, it hypothetically is, given [wife’s counsel’s]
hypothetical and the application of res judicata, which is simply that it was fully litigated in
another jurisdiction to a Final Order. So there would be nothing left for this court to be
determined.” Wife’s counsel added that, “[i]f the court in Nepal adjudicates the property case
and sets forth orders regarding certain pieces of property, then those pieces of property would not
be re-litigated in this court.”
Moreover, the parties agreed on August 20, 2013, to stay the proceedings in Fairfax
County Circuit Court, “pending a resolution of Ms. Bajgain’s claims now pending before the
Court of Nepal.” The claims then pending in Nepal included wife’s suit in coparceny, i.e., for
division of marital property, filed August 30, 2011, and her forgery claims filed before the circuit
court stayed its equitable distribution proceedings.
The record supports the circuit court’s conclusion that wife agreed to be bound by
whatever issues were resolved to finality in Nepali courts, and to reserve jurisdiction in Fairfax
County Circuit Court for whatever issues remained unadjudicated. Moreover, wife was the one
who initiated the litigation in Nepal, where she was represented by counsel. Reviewing the
circuit court’s construction of its own order under a deferential abuse of discretion standard, we
affirm its decision that the parties’ stipulation precludes wife from relitigating the issues the
Nepali court resolved.
B. The Nepali court divided all of the marital assets.
Relying on her own expert’s testimony, wife maintains that the Nepali court had no
jurisdiction over property or assets located in the United States and, therefore, the Fairfax County
Circuit Court should allocate those assets. She also suggests that the Nepali court did not, in
fact, distribute all of the marital property. The circuit court, however, found credible the
testimony from husband’s expert that the Nepali court had, in fact, divided all of the parties’
- 12 -
assets.7 The evidence shows that wife and husband submitted property schedules, with
husband’s schedule including property located in the United States, to the Nepali court and that
the Nepali court proceeded to divide that property. Assuming, as wife argues, that the Nepali
court erred under the laws of that country, the remedy for wife was to seek relief in Nepal, not
Virginia. Indeed, wife had her Nepali divorce decree vacated following an appeal. The evidence
supports the circuit court’s conclusion that the Nepali court allocated all of the parties’ property,
including property located in the United States, and that the parties’ stipulation foreclosed her
from relitigating the distribution of marital property in Fairfax County.
Wife also argues that she contemplated that the Nepali court would only divide property
located there and that the Fairfax County Circuit Court would divide property located in the
United States. She maintains that, under those circumstances, the joint stipulation does not
preclude her from litigating the division of property held in the United States. In his motion to
stay equitable distribution proceedings in Fairfax County, filed May 25, 2012, husband noted
that the Morang District Court would divide “[a]ll property which existed as of August 29, 2011
. . . to include assets held in the United States.” Wife did not then dispute husband’s
characterization of what the Nepali court intended to do. Further, the Morang District Court’s
order acknowledges that wife “has . . . demanded the partition share from the property in
America . . .” and also makes clear that one of her pleadings “accepted” that property located in
the United States would be partitioned. Whatever wife’s initial expectations might have been,
the ultimate outcome of the Nepali litigation that she initiated could not possibly have come as a
surprise.
7
The parties did not own any real estate in Virginia. Therefore, this case does not
present the issue of a foreign court disposing of real estate located in Virginia.
- 13 -
C. The circuit court’s well-founded interpretation of the parties’ stipulation
forecloses relitigation of wife’s claim that husband dissipated marital assets.
Wife’s third assignment of error is that the circuit court erred in concluding that wife
was given a fair opportunity to be heard during the Morang District
Court proceedings when [husband] failed to disclose all marital
assets and provided false evidence and other information to the
Morang District Court to support his waste and dissipation of
marital assets which was specifically done in contemplation of
divorce and was in violation of the standing Pendente Lite order.
It is undisputed that husband transferred large sums of money to family members. Wife
initiated forgery proceedings in the Nepali court attacking these transfers. Husband argued that
he made these transfers to repay loans extended by family members. The Nepali court, after
hearing evidence from both sides and “studying the documents enclosed with the case file,”
concluded that wife had failed to prove her case. It accordingly ruled in husband’s favor. Wife
agreed by stipulation to be bound by the Nepali court’s decisions. The circuit court specifically
found that wife received a fair hearing in Nepal and that she had the opportunity to present her
case and be heard. That conclusion finds ample support in the record. Wife, who is bound by
the joint stipulation not to relitigate issues litigated to finality in Nepal, may not now reopen this
issue for another round of litigation in Fairfax County.
D. Wife’s decision to pursue the division of property in the Nepali court also
forecloses her claim for spousal support.
Wife also assigns error to the circuit court’s conclusion that the Nepali court’s division of
property prevents her from seeking spousal support in Fairfax County. As noted above, wife
agreed to be bound by whatever issues were litigated to finality in Nepal. Under the law of
Nepal, the allocation of property is the means by which a divorced woman is to support herself –
there is no spousal support after the property is partitioned. The record indicates that, generally
speaking, the class of property available for distribution in Nepal is broader than what would
have been available for distribution in Virginia. Under Virginia law, property acquired before
- 14 -
the marriage, as well as property inherited during the marriage, constitutes separate property.
Code § 20-107.3(A)(1). In contrast, Nepali law calls for the distribution of property gifted
before the marriage, as well as inherited property. Once the court made a full distribution of
property to her, wife could no longer claim spousal support under the law of Nepal. In other
words, the proceeding wife initiated in Nepal was not confined to distribution of property located
there, with the remainder of the issues to be decided by a court in Virginia. Instead, the court in
Nepal distributed all of the parties’ property. That distribution of property foreclosed wife from
seeking spousal support under the law of Nepal. Wife agreed that resolution of legal issues in
the courts of Nepal would foreclose relitigation of those issues in Virginia. Accordingly,
notwithstanding wife’s initial reservation of the right to litigate the issue of spousal support in
Fairfax, the circuit court correctly concluded that the parties’ stipulation precluded wife from
seeking spousal support following the conclusion of the proceedings in Nepal.
III. FULL FAITH AND CREDIT, COMITY, AND UNCLEAN HANDS
Wife claims in her first assignment of error that the circuit court erred by giving full faith
and credit to the Nepali court’s division of property. First, we note that under settled law, the
Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1, does not
apply to the judgments of foreign nations. Oehl v. Oehl, 221 Va. 618, 622, 272 S.E.2d 441, 443
(1980). Instead, principles of comity apply to such judgments. Id.; see also McFarland v.
McFarland, 179 Va. 418, 430, 19 S.E.2d 77, 83 (1942) (discussing comity). Wife urges us to
apply ordinary principles of comity to this case. Contending that Nepal’s support and equitable
distribution laws differ from Virginia’s and that Nepali courts do not accord reciprocity to the
divorce decisions of our (or our sister states’) courts, she argues that we should refuse to
recognize the Nepali court’s decisions.
- 15 -
This, however, is not the typical comity case where a party obtains a judgment in a
foreign nation and then seeks to have it recognized in Virginia. Here, wife agreed that she would
not relitigate issues resolved in the Nepali court. She then initiated multiple proceedings in
Nepal. Given our ruling as to the stipulation’s preclusive effect, ordinary principles of comity do
not come into play. Instead, the case is controlled by the parties’ joint stipulation, which, as we
have noted, forecloses wife from sidestepping the adverse judgment that she obtained in Nepal.
Wife contends in her final assignment of error that the circuit court erred when it held
that she had unclean hands and that she was guilty of “double dipping.” The parties assume that
the equitable doctrine of unclean hands doctrine applies. We have held, however, that “[t]he
‘clean hands doctrine’ is unavailable to a party when it is asserted in the context of equitable
distribution proceedings,” Westbrook v. Westbrook, 5 Va. App. 446, 457, 364 S.E.2d 523, 530
(1988), and that it “does not apply to the determination of a spousal support award pursuant to
Code § 20-107.1,” Huger v. Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993). We
explained in Westbrook that although divorce cases appear on the chancery side of the docket,
the many statutory limitations placed on divorces differentiate those cases from ordinary suits in
equity. 5 Va. App. at 455-57, 364 S.E.2d at 529-30. Consequently, in adjudicating these cases,
we look to the terms of the statute rather than equitable maxims. Id. at 457, 364 S.E.2d at 530.
See also Huger, 16 Va. App. at 790-91, 433 S.E.2d at 258-59 (relying from Westbrook and
holding that spousal support awards turn on statutory considerations). Consistent with these
holdings, we decline to apply the equitable doctrine of unclean hands here.8 Because the circuit
8
Husband requests attorney’s fees in connection with his defense of this appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Considering the
record and the arguments before us, we deny his request.
- 16 -
court invoked unclean hands as a secondary ground for its decision, the doctrine’s inapplicability
does not change our conclusion as to the stipulation’s preclusive effect.
CONCLUSION
We affirm the decision of the circuit court.
Affirmed.
- 17 -