Virginia Family Law Appeals

Court's refusal to issue Rule to Show Cause isn't final, doesn't prevent contract suit to enforce agreement -- Kellogg v. Green

In Kellogg v. Green, Va. S.Ct. 2/22/18, an amended prenup was incorporated, but not merged, into a divorce decree. The ex-wife reopened the divorce case and sought a Rule to Show Cause, claiming the ex-husband owed her money under the agreement. The court declined to issue a rule, saying the agreement did not say "when, where or in what form payment of any amount due shall be performed." Wife then sued for breach of contract on the same grounds. Husband pled res judicata, and the trial court agreed. Wife protested that the rejection of the Rule to Show Cause was not a final order, as the court had kept the case on the active docket for further enforcement of the agreements.

The Supreme Court looks at Rule 1:6 on res judicata, emphasizing that it requires a final judgment, and that that judgment must be "on the merits": 

A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought.

The Supreme Court doubts that this judgment was "on the merits", but wife only raised the finality issue, so that is all that the Court decides. Even if a trial court disposes of the main issues and only retains jurisdiction to address other issues, its orders are not final nor appealable, the Supreme Court says:

A final judgment is essential to the imposition of res judicata to bar a claim. Norris v. Mitchell, 255 Va. 235, 239, 495 S.E.2d 809, 812 (1998). A decree that enters judgment for a party is not final if it “expressly provides that the court retains jurisdiction to reconsider the judgment or to address other matters still pending in the action before it.” Super Fresh Food Mkts. v. Ruffin, 263 Va. 555, 561, 561 S.E.2d 734, 737 (2002); see also Johnson v. Woodard, 6 281 Va. 403, 409-10, 707 S.E.2d 325, 328 (2011) (“[A] circuit court may avoid the application of the 21-day time period in Rule 1:1 by including specific language stating that the court is retaining jurisdiction to address matters still pending before the court.”). A decree is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution. Where further action of the court in the cause is necessary to give completely the relief contemplated by the court, the decree is not final but interlocutory. Brooks v. Roanoke Cty. Sanitation Auth., 201 Va. 934, 936, 114 S.E.2d 758, 760 (1960) (citations omitted).

In this case, the Supreme Court says, the trial court decided that a Rule to Show Cause was not the proper way to enforce the particular provision of the agreement, and kept the case open for enforcement of the agreement by other means:

The Show Cause Order did not contain any language to indicate that it was a final order regarding the enforceability of the Agreements; there was no language indicating that there was nothing further to be done in the action. There was no language in the Show Cause Order which would bar the filing of a subsequent show cause petition or the attempted enforcement of the Agreements in some other manner. Thus, the Show Cause Order did not render a final judgment concerning the enforceability of the Agreements.

But that could have easily gone the other way, on the finality issue. If the trial court had written that the denial of the Rule to Show Cause petition was final because a contract action would be in a separate suit, and had not kept the case open for anything else, that would been a final order. That would have led to an unfair result, because a contract obligation that does not include enough specifics to be enforceable as contempt of court can still be an obligation which a court could interpret and enforce. Especially with the court's powers under 20-107.3(K). This particular obligation was to pay the wife $5,000 for every year of marriage.

At the end of the opinion, the Supreme Court once again reminds us that its holding in Lee v. Spoden, 290 Va. 235, 776 S.E.2d 798 (2015), in which a contempt proceeding created res judicata, requires a judgment that was not only final, but was on the merits.

Late license justifies annulment of marriage AND of marital financial agreement, other fallout

The case of MacDougall v. Levick and Levick v. MacDougall (2/23/16) is a big mess for everyone but provides superbly-written and useful guidance on many issues at a time of change in family law.

The couple's wedding was in 2002. They apparently -- rather incredibly, but no one seems to have ever questioned their honesty on this -- had not realized they needed a marriage license. Their rabbi was completely unfamiliar with Virginia, and prudently went to the Fairfax Circuit Court beforehand to register as clergy so he could perform the wedding. The day of wedding,  he asked the couple for the license, and they said there wasn't one. He thought that was odd and unprecedented, but then again many things about Virginia seem odd to people from Montgomery Co., Md. Everyone decided to "deal with it later" and the wedding proceeded. Two weeks later, the couple got a marriage license, but instead of then having a brief additional ceremony with the rabbi or a civil magistrate, they mailed it to the rabbi in Maryland, and he signed it, certifying the marriage as occurring on the day he signed it.

The couple lived together, assuming they were married. In 2009 they entered a Va. Code § 20-155 "Marital Agreement", which is like a prenup but after the wedding, and in fact they are often done when a marriage seems to be breaking down.  Indeed, many complete separation/property settlement agreements claim to be Marital Agreements, citing 20-155. It gave the wife $150,000 a year in alimony -- not too much more than the average income and cost of living in the Northern Virginia suburbs -- and it said  it “shall form the foundation of a divorce or separation agreement, should either come to pass”.

And it came to pass that the wife filed for divorce in 2011, asked the court to incorporate the agreement and grant pendente lite alimony based on it, and received a pendente lite award of about two-thirds what the agreement said.

You Gotta Getta License

Virginia has required some form of licensing by church or state BEFORE marriage since 1628, the Court points out. Licensing first, then "solemnization". The wife had argued that the rabbi's signing of the certificate was a solemnization, or alternatively that the whole process of the wedding, the licensing and the signing was one single comprehensive event of the formalizing of the marriage. No, the Court says, because license always means something you get BEFORE you can do something -- hunting driving, practicing law -- and "To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Black’s Law Dictionary." Or "“to perform with pomp or ceremony or according to legal forms; esp : to unite a couple in (marriage) with religious ceremony : celebrate (a marriage) with religious rites”). " (Webster's) 

Mailing a license via express mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term. FN 3: We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the attendance of both the prospective bride and groom . . . .” (quoting Code § 32.1-267(C)))

... Offield, 100 Va. at 251, 40 S.E. at 910, ... observ[ed] that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “‘may result in hardship in some cases’” but took the view that “‘the lesser injury will come from an adherence to the statutory requisite than otherwise.’” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “‘[o]ur marital laws are plain and simple, not difficult to understand by the humblest citizen.’” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). 

Rules of Equity Don't Apply?

What I find disturbing in this case is this:

We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, - 15 - 457-58, 769 S.E.2d 267, 276 (2015).

I learned the maxims of equity in law school, starting with cases governed by the Uniform Commercial Code, and have dealt with them in many divorce cases in my 20 years of practice. I had never heard that they were not supposed to apply in divorce, or in other areas of law dominated by statutes instead of pure common law. Indeed, all family law cases  in Circuit Court were administered on the "Chancery" side of the courts until the structure of Chancery, but not the substance of equity, was abolished around 2006. Judges and lawyers in family law cases frequently invoke equitable doctrines, especially estoppel (which usually means a rule that a part can't claim in court the opposite of what he claimed before, in or out of court). Estoppel is often a key issue in cases about the validity of a marriage or recognition of a foreign divorce. 

But the Court notes that annulment is a creature of "the inherent power of equity, inherited by it from the ecclesiastical courts of England", whereas divorce is created purely by statutes. Pretlow v. Pretlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941).  There are statutes about annulments but they codify and set procedures and rules for a remedy that was already available. (Citing Heflinger, 136 Va. at 296, 118 S.E. at 318).

And so, assuming only for the sake of argument that equity defenses to the attack on the marriage are available, it rejects them. Laches does not apply because it is the unexplained failure to pursue a known claim, and here, the person challenging the marriage acted fast once someone told him that the marriage might not be valid. Also, a case chiding a wife for a late challenge to her divorce decree, after the husband and new wife relied on that divorce and got married, does not apply to someone challenging his own existing marriage.

Also, the wife cannot claim that the husband should have known about the problem earlier, when she herself knew all the same facts at the same time. There can be no estoppel when both parties had the same knowledge of the operative facts and the same ability to investigate them. (Citing Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)).

Void or Voidable?

The Court finds the marriage merely voidable (by an annulment sought by a qualifying party to the marriage), not absolutely void (regardless of what anyone wants). 

Curative Statute

Va. Code § 20-31 validates good-faith marriages despite any technical problems with the license or the celebrant. But it does not apply to this couple, the Court said, because of the phrase in its first line, "solemnized under a license":

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Ratification of Marriage

This certainly could have been a decisive issue, but "The parties have not raised the question of whether they could and did ratify the marriage. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address the question of whether a marriage such as this one may be ratified."

This ground for annulment is not among the grounds which Va. Code. § 20-89.1 says cannot "be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment."

Interpretation and Construction of Wording

In analyzing a statute, we give each word “‘its ordinary meaning, given the context in which it is used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). 

Prenup does the job without express waiver of equitable distribution

A prenup was still effective even though it did not include a specific waiver of a right to equitable distribution of property in a divorce, Virginia's Court of Appeals said in Thomas v. Thomas, unpublished, 5/31/16. The agreement had sufficient language to define certain property as separate property; to classify property acquired during the marriage depending on how it was titled, and to specify how co-owned property was to be divided, leaving only a small amount of property to be divided in equitable distribution. In equitably distributing that property, the trial court went through all the factors that could affect how it distributed it, and then divided it in accordance with the prenup, which said that co-owned property would be divided in half, regardless of any separate-property contributions to it.

Appeal dismissed for naming estate instead of personal representative as appellee

An appeal of a court's interpretation and enforcement of a prenup was dismissed for naming as appellee the estate of the ex-husband, instead of the estate's "personal representative", in Loewinger v. Estate of Loewinger (Va. Court of Appeals, 10/21/14). 

It's rare, at least in family law, that "misnomer" is a fatal error. This ruling, while harsh, is at least clear and teaches future litigants what they have to do. The appellant had asked the trial court for leave to substitute the estate as a party in the case, but that did not justify any deference or mercy from the Court of Appeals.

“'[A]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity.' ... because '[t]here must be such parties to the record as can be affected by the judgment and from whom obedience can be compelled'”, the Court says, quoting  Rennolds v. Williams, 147 Va. 196, 198, 136 S.E. 597, 597 (1927).

"Code § 8.01-229(B)(1) and (B)(2) 'direct [a] decedent’s personal  representative to file any personal action which the decedent may have been entitled to bring and to defend any personal action which could be brought against the decedent.' Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (emphasis added). This limitation is further highlighted by the language of Code § 8.01-229(B) 'which allows claims to be filed against the property of the estate, but provides that actions may only be filed against the decedent’s personal representative.' Appellant was required under Code § 8.01-229(B)(2) to name Loewinger’s personal representative, not his estate, as the party in interest in the present case."

The fact that this was a suit on a contract, i.e. the prenup, and the timing of the death relative to the timing of the suit, the lower court ruling, and the appeal, also seem to the Court to be relevant to the outcome.

Court rejects post-divorce extrinsic-fraud challenge to postnup, and to divorce order based on it

In Harris v. Harris (9/30/14), the Court of Appeals upholds a Circuit Court ruling rejects a fraud challenge filed several months after a final divorce decree, which was agreed-on and incorporated a postmarital agreement. The husband claimed the wife had failed to disclose several debts in the postnup, he only started finding out about them a few months after the divorce, and he would not have signed the postnup if he had known. But he trial court said husband could have raised his fraud claims during the divorce process, so he cannot now. The Court of Appeals says that "nothing in the recorrd suggests otherwise."

The postnup was really a separation agreement; it was made three years after the couple had separated permanently, and shortly before the divorce. The agreement had a clause about after-discovered assets and liabilities, but apparently it did not help. The opinion does not disclose whether the debts were ones that actually affected the husband, nor any of the facts or claims in the controversy over whether the husband should have known of the debts at the time of the agreement, except that it quotes the wife's cliam that if he had undertaken a minimal investigation into his own financial situation, he would have discovered them. The wife's counsel used a "plea in bar" successfully to narrow down the issues and dispose of the case. So in that process no evidence was taken, and the husband's case was rejected even with all his factual claims taken as true.

Although a "res judicata" does not apply when extrinsic fraud is proven, it does apply here because such fraud is "conduct that prevents a fair submission of the controversy to the court." The Court relied on Ellett v. Ellett (2001) which is said was very similar.

The appeals court declined to award wife fees on appeal.

Laches was mentioned but not addressed because it was not "the best and narrowest ground available".

SEPARATION AGREEMENTS – SET-ASIDE – UNCONSCIONABILITY -- UNDUE INFLUENCE – $10,000/MONTH FROM $12,000 INCOME -- SEPARATION AGREEMENT AS “GOOD-FAITH” TOKEN ALLOWING RECONCILIATION -- ENFORCEMENT NOTWITHSTANDING REPRESENTATIONS. - Va.Ct.

A trial court’s refusal to enforce a rather dubious separation agreement was reversed because the Court of Appeals found no undue influence (and nothing unconscionable) where the trial judge had found plenty. Though  apparently it was  proved that the doctor’s monthly income was $12,066, and the contractual alimony was $10,000. Soon after the husband left home the couple had seen a priest, who told H that W was demanding a signed separation agreement as a precondition of reconciliation “as a sign of his good faith,” and that she would not enforce it, but six months after getting it ratified by a court, W brought a support enforcement Rule to Show Cause against H. The Record, the Court says, does not show that W engaged in deception. Nor was there “pecuniary necessity,” as this is a middle-aged male physician, who can always go out and make “a significant salary.” Guirguis v. Salib, unpublished, (1/15/13).

Cruelty to Husband; proven through Wife's previous charges - Va.Ct.App.

CRUELTY – SUFFICIENT FACTS. It’s not that rare for divorce a party’s claims of cruelty as a divorce ground to be accepted, but when it’s a husband’s claim, it is still newsworthy.  And of course this wasn’t one of those disgraceful  “ mental cruelty” claims that the appellate courts grudgingly accept once in a blue moon, but which shameless lawyers file all the time. No, this husband who proved his divorce ground that way was a battered one. And what kind of factual evidence did it take to bring off this highly unusual feat? Well it seems that husband married, with a prenup, a woman who had entered the US in 2003, and whom he met in 2007, while representing her in an immigration case. The romance continued in court, where she did not contest her first charge of assaulting and battering the husband (2007). She got probation on the second (2009). Wife got off when she was charged again in 2010, and the parties separated. When she was arrested for the same thing in 2011, the husband filed for divorce and the divorce court took notice of the battering, and considered it more seriously. It found husband’s grounds proved, awarding husband custody of the child they had had by that time, and enforced the antenuptial contract. A male actually got a cruelty divorce with just those facts?  (Which seems to have been the argument of the still-unrelenting wife as she challenged the sufficiency of the facts on appeal.) No, of course not: there’s more, of course, and it was significant in convincing the Court of Appeals on appeal. As the Court reads and explains the statute and its case-law interpretations in its opinion, it requires something tending to bodily harm which renders cohabitation unsafe to life, limb or health. Well? …. Husband and his mother had testified that wife’s years of physical and verbal abuse had made the husband afraid to even speak in her presence, creating an unbearable living situation in his home,and making cohabitation unsafe. The Court says the law requires “only slight” corroboration here, because no collusion was shown, and it’s furnished by the three assault and battery charges, wife’s propensity for violence, and photos husband showed of his injuries. A cop and Husband’s mother testified. Well of course wife claimed husband had threatened her (with deportation), and that that made her attacks all right. But the trial court was not required to believe that, nor to grant the divorce on no-fault grounds, as she demanded. Ibrayeva v. Kublan, R. No. 1120-12-4, unpublished (12/11/12).

Prenup boilerplate precludes most challenges; 6-figure disclosure error not fatal in context - Va. Ct. App.

PREMARITAL AGREEMENTS – DISCLOSURE – STANDARD FOR PROVING FRAUD OR NON-DISCLOSURE – ESTOPPEL — CLAIMED REVOCATION/REPUDIATION OF AGREEMENT – SUPPORT — MODIFICATION RETROACTIVITY — DISCOVERY — UNUSUAL DISCOVERY ORDER UPHELD. The Court of Appeals in Makoui v. Makoui, unpublished, 26 VLW 726, 11/22/11, upholds a premarital agreement whose disclosure attachment valued stock at $68,000, even though the owner spouse testified that at the time of the agreement it was worth $250,000 to $300,000.

The Court says the first thing to consider is that the agreement signed by both parties “specifically states each gave a ‘fair and reasonable disclosure,’” and the Premarital Agreement Act says this recitation creates a presumption that it is true. (Code § 20-151(B).)

Second, “the statute requires only that the disclosure be ‘fair and reasonable’ and not that the disclosure include a present fair market value for each item of property disclosed.” And looking at the context, the schedule listed many other intangible asset values totaling $214,000, just counting those whose values were listed, plus “thousands of shares of named stocks for which no value was listed.” (And wife offered no evidence that the value of the non-valued stocks was negligible.)

As for other challenges to the agreement as unconscionable, the Court stresses that it takes both unconscionability at the time of signing and non-disclosure to overturn the agreement under Code § 20-151(A)(2) , and that both parties were “mature, college-educated adults at the time of their marriage,” and “the agreement did not provide for a gross disparity in the division of any marital assets that might come into existence during their marriage.”

Husband had told the wife that he had torn up the agreement when she demanded to see a copy of it. But that does not estop him from later asserting his rights under the agreement, the Court says. Although it seems he had lied about this, the trial court didn’t find that the wife proved that she had relied upon that misrepresentation in any way, and that if she had, that reliance would have been unreasonable. Both Code §20-153 and the prenup’s terms say that a prenup can be revoked or amended only by a written instrument. And “wife was charged with knowledge of both the applicable statute ... and the terms of the agreement.” A useful reminder to make sure that clients have read and understood “boilerplate” provisions, and the statutes that lay out the framework, ground rules and limitations of the agreements they are entering.

The husband cross appealed because he had filed for a modification of pendente lite spousal support, and when the court granted that modification from $5,000 to $1,000 per month it did not make it retroactive to the date he filed the motion. The Court of Appeals upholds, as “husband could have avoided the accrual of the arrearage if he had acted in a timely fashion.” So filing for modification so as to enable a change to be retroactive to the filing date, but then not setting it for hearing, can be dangerous.

The trial court ordered a federal-court-style schedule of evidence disclosures instead of the usual discovery process, and the Court of Appeals says that was not reversible error, at least to the extent the wife preserved her objection. There is a right to discovery under Rule 4:1(b)(1), the Court stresses, but that Rule also says the court may limit “‘the frequency or extent of’ discovery methods ‘if it determines [inter alia,] that: . . . (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.’” And “the granting or denying of discovery is a matter within the discretion of the [circuit] court and will not be reversed on appeal unless ‘the action taken was improvident and affected substantial rights.’” (Citing O’Brian v. Langley Sch. (Va. 1998) and Rakes v. Fulcher (Va. 1970)). At the time when the wife moved to compel answers to interrogatories, the trial court had already disposed of all issues except for four-digit property and alimony issues, so its ruling did not “affect substantial rights.”

Chaplain case: Foreign-born wife can't get out of prenup

AGREEMENTS — ANTENUPTIAL CONTRACTS — VALIDITY — ATTACK BY FOREIGN-BORN SPOUSE.  Beginning to let these matters get mighty complicated, the Virginia Court of Appeals made some very precise distinctions and rulings for the first time when it reviewed Chaplain v. Chaplain, the case of a complaining wife originally from Morocco trying to overturn her pre-nuptial agreement.  After that remand, with all sorts of directions for the trial judge to examine certain issues, or examine them in a different way, it now had to hear a second appeal by this wife because she was even more unlucky when the judge below did a very patient and very thorough job with all the requisite determinations and ultimately held the agreement valid.  The Court of Appeals now does the same kind of scrupulously objective job with great thoroughness in Chaplain v. Chaplain II, unpublished, 25 VLW 931 (1/18/11), reviewing every possible issue, one by one.  You may remember that the wife said her English wasn’t very good, so that merely finding that the husband was honest and open about everything at the time of marriage, the trial court could justifiably find that she married him in order to get his money and U.S. citizenship and had actually let it be known that she planned to lie about her understanding of what was going on at the time of the agreement if there should ever be a divorce.  The Court of Appeals had ruled last time that husband did not make sufficient disclosure of his property holdings and wife had not waived her statutory right to disclosure before signing.  And the Court of Appeals now says that the decision below sustaining the agreement would in fact be wrong if the evidence had proved either that the agreement was unconscionable at the time or that it was not fully voluntary.  In this framework the Court of Appeals reviews the evidence in great detail.  It finds that this wife spoke and understood English quite well back then, and it gives fully detailed findings as to why, so that lawyers taking on such a dispute in future cases might use these indices as a checklist.  Before the marriage she read newspapers and menus in English, wrote business letters in English for husband, and was able to converse without a translator, dictionary or phrase book on some complicated subjects.  The evidence also established that she had said that if there should ever be a divorce she would lie about all this, and the evidence also supported the finding that she had not proved any kind of physical or mental limitations or any financial oppression brought to bear so that the contract would be unconscionable.  All the circumstances of her meeting up with her future husband during a vacation trip from Morocco here are reviewed, as is wife’s 15 or more years’ office experience in Morocco before that, her college education, and her preparation of business letters and other business documents in English once here.  It was proved that she had the intellectual capacity to understand what the agreement would mean and she never proved at trial that she didn’t have at the time of the agreement the ability to support herself either over here or over there.  The Court found no evidence of bad faith, concealment, misrepresentation, undue advantage or bullying on the husband’s part.  And even though he did not completely disclose his financial condition, that alone is not enough to prove any of those necessary elements.  The evidence proves she knew exactly what was in the agreement before signing, and had plenty of chance to consult with independent legal counsel if she had wanted.  Nor was there any evidence of gross disparity in assets.  In fact, the agreement said that the parties would keep their separate assets in the event of a future divorce as separate property.  At this point the Court of Appeals says that even if the evidence below had proved a gross disparity of assets, that would not have made it unconscionable nor have established oppression or overreaching.  The trial court’s finding that wife signed the agreement voluntarily was also well supported by the evidence, and hence the Court of Appeals affirmed.

MARRIAGE – CONTRACT ENFORCEMENT – IRANIAN PREMARITAL CONTRACT.

Do the Virginia courts want to get into the tricky business of construing and enforcing Iranian marriage contracts?  Apparently so.  When the Fairfax Circuit Court enforced such a contract, it construed it as being a premarital contract, and as requiring husband to pay wife 514 gold coins known as Bahar-E-Azadis, and held it valid and enforced it.  Husband’s various claims on appeal included that it was wrong for the court to admit this document into evidence, along with a BBC Multilingual English translation. But Aha!: husband didn’t sufficiently note his objections at trial so as to satisfy Rule 5A:18.  The appellate court can’t really tell what his objections were, and the same goes for his objection that the contract is fatally vague on its face unless bolstered by expert testimony.

Now as to letting the wife be her own expert and testify as to Iranian and Islamic law, it appears that her testimony was simply that she was owed these 514 gold coins as her marriage price and could demand them at any time, i.e., testimony about the terms of a contract she was a party to, so no problem there. (It’s not a case, like some that lawyers see, calling for payment in goats or camels, but one calling for money in the form of gold). Nor can this enforcement be faulted under Code §20-107.3, because this was not an equitable distribution, but merely a judgment that wife had a valid right to that gold under the contract. Afghahi v. Ghafoorian, unpublished, 24 Va. Lawyers Weekly 1189 (3/30/10).