Bajgain v. Bajgain

• Citation: 64 Va.App. 439,769 S.E.2d 267
• Decision Date: 17 March 2015
• Docket Number: Record No. 1127–14–4.
• Parties: Bindu BAJGAIN v. Devendra BAJGAIN.
• Court: Court of Appeals of Virginia

64 Va.App. 439

769 S.E.2d 267

Bindu BAJGAIN

v.Devendra BAJGAIN.

Record No. 1127–14–4.

Court of Appeals of Virginia, Alexandria.

March 17, 2015.

Sequitta Banks (B & B Law Group, PLC, Pittsburgh, on briefs), for appellant.

Amanda P. DeFede (McIntyre DeFede Law PLLC, Manassas, on brief), for appellee.

Present: Judges HUMPHREYS, BEALES and McCULLOUGH, JJ.

Opinion

McCULLOUGH, Judge.

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).

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 pendentelite support. On August 20, 2012, the parties reached a stipulation concerning the effect of the 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 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, 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 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...