Marni v. Marni

• Decision Date: 13 November 2018
• Docket Number: Record No. 0103-18-4
• Court: Virginia Court of Appeals
• Parties: RAJ MARNI v. KSENIJA MARNI

RAJ MARNI v. KSENIJA MARNI

Record No. 0103-18-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 13, 2018

UNPUBLISHED

Present: Judges Alston, O'Brien and AtLee

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE ROSSIE D. ALSTON, JR.

FROM CIRCUIT COURT OF LOUDOUN COUNTY

Jeanette A. Irby, Judge

Samuel A. Leven (The Baldwin Law Firm, LLC, on briefs), for appellant.

Ksenija Marni, pro se.

Raj Marni (appellant) appeals the trial court's decision to grant appellee's motion to strike. Appellant contends that (1) he established a prima facie case of unconscionability. Alternatively, he argues that the trial court erred when it sustained objections to his testimony regarding the following: (2) reconciliation; (3) appellee's income; and (4) the trial court's refusal to admit his post-trial proffer of that evidence, thus preventing appellant from sustaining his burden. We find that the trial court did not err in granting appellee's motion to strike, but even assuming arguendo that the trial court had erred in any of its evidentiary rulings, the error was harmless. Accordingly, we affirm the trial court.

I. BACKGROUND

Appellant and Ksenija Marni (appellee) were married in 1991 and had two children.¹ The parties entered into a separation agreement on January 11, 2016, and signed an amended version of that agreement on February 8, 2016. Appellee filed a bill of complaint for divorce on December 29, 2016 on the ground of living separate and apart for more than one year. At a hearing on June 2, 2017, appellant made an oral motion for leave to file a late responsive pleading, which the trial court granted, as well as an oral motion to set aside the agreement. In his responsive pleading, appellant alleged adultery as a ground for divorce and argued that the agreement was invalid, void, and unconscionable.²

The trial court bifurcated the divorce proceeding from agreement-related matters and awarded appellee a divorce based upon a one-year separation. The trial court entered the final divorce decree on June 19, 2017, and ultimately heard agreement-related matters on December 4, 2017. Those included whether the agreement was unconscionable and whether it should be incorporated into the final divorce decree.

At the December 4, 2017 hearing, appellant testified. Appellant maintained that during the parties' separation, appellee emailed appellant about her financial needs. Appellant, believing that "[appellee had] a change of heart," arranged for the parties to meet for dinner. Appellee brought a draft separation agreement to dinner, which appellant signed. As they continued to discuss financial matters and the agreement, appellee made notations on a napkin. A few days later, on January 11, 2016, appellee brought the revised agreement to appellant's house. Appellant had the agreement in his possession for an hour and a half, yet according to appellant, he reviewed it for just a couple of minutes prior to signing it. The agreement wasnotarized. Afterwards, the parties communicated over email. Appellee expressed that she was in financial need and sought to amend the agreement. Appellee emailed appellant the amended agreement, but appellant did not "recall all the email." The parties met near a bank on February 8, 2016. There, appellant "looked at [the agreement] briefly for a second," and then signed it. That agreement was also notarized. Shortly thereafter, appellant flew to the Ukraine. Upon his return several months later, appellee requested payments pursuant to the terms of the agreement. For the first time, appellant parsed the agreement "line-by-line" and "found out it [was] just impossible to meet."

Upon the parties' divorce, appellant testified he was to retain the following assets: his vehicle, books, clothing, and personal computer. Appellant then testified to his income. Upon appellant's release from federal prison due to a fraudulent transaction conviction, appellant earned ten dollars an hour in 2012. In 2013 and 2014, he earned between $30,000 and $40,000 annually. In 2015, appellant was employed by Apps Associates and earned a gross monthly income of $15,000, excluding his bonus. Appellee covered most of the household expenses between 2012 and 2015. During questioning about his income and expense statement, appellant testified to the following monthly expenditures: $368 for appellee's health insurance, $685 for their daughter's living expenses, $1,100 for their daughter's tuition, $100 for their son's lunch, $386 for their son's basketball fee, $380 for their daughter's miscellaneous spending, $160 for their son's miscellaneous spending, $140 for the children's school supplies, $190 for the children's clothing, $278 on the Prosper Loan, $745 on the Circle Bank loan, $1,147 on car payments for his vehicle, appellee's vehicle, and their daughter's vehicle, in addition to his own vehicle insurance. Appellant also agreed to cover their son's expenses during his collegiate studies. Appellant also assumed all tax liabilities. Appellant owed approximately $1,100,000 in restitution for his federal conviction to be paid at the rate of $150 per month.

Appellant alleged that if bound by the agreement's terms, his expenses would far exceed his income, resulting in a monthly deficit of over $3,000. Appellant stated that this figure did not include his $2,000 child support and $4,000 spousal support obligations, which would produce a $9,000 deficit.

Cross-examination revealed that appellant paid $3,500 in mortgage payments on a home purchased in February of 2016 and that he had $58,000 in liquid assets. Appellant admitted to traveling to Dubai with his son—roundtrip tickets cost over $2,000. Appellant conceded that he was also approved for a $1,000,000 loan, but he denied having a second home under contract. The approval letter reflected appellant's "exemplary" credit score and was contingent only upon an appraisal and sale of his current home. While refusing to comply with the agreement, appellant admitted that he offered to pay appellee $2,000 for rent, $1,000 for food, car payments, and her medical insurance as long as she requested specific sums from appellant each month. During this time, appellant also offered to fly appellee to her native country of Slovenia and deposited $20,000 into her bank account. Appellant maintained that this sum did not constitute spousal support, child support, or a gift. Appellant noted that their son lived with appellee and that appellant paid separate sums to him.

Appellee testified. According to appellee, appellant sent her a template agreement so that the parties could avoid the expense of having an attorney prepare it. She completed a draft agreement after the parties exchanged several communications. After being revised, the parties signed the agreement at appellant's home in January of 2016. After being amended, the parties signed the agreement at a bank in February of 2016 before appellant's trip to the Ukraine. Appellee testified that the purpose of that trip was for appellant to meet a thirty-year-old woman he connected with on a dating site.

Appellee also testified about her income. Appellee opened a real estate business, Lifestyle Associates, in either 2009 or 2010. From her business, she earned $40,000 in gross receivables in 2016—after deductions, her income was $15,000, and $50,000 in gross receivables in 2017. Appellee was also the sole owner of a company called M4 Technologies. Appellee testified that appellant directed her to establish M4 Technologies for his benefit as an entity through which he could be billed for his consulting work for Smartronix. Appellee further maintained that she does not have a background in the technological field whereas appellant "has [his] masters' degree in IT." As sole owner of M4 Technologies, she issued appellant 1099s in 2015 and 2016, but she could not remember the exact amounts. The parties filed a joint tax return, but she could not remember their combined income for 2015. While appellant was incarcerated, appellee covered expenses with her earnings, bank loans, and borrowed funds from relatives. Appellee noted she drew two loans in her name for appellant's benefit—a $10,000 loan with Prosper to cover appellant's taxes and a $29,000 loan from Circle Bank to cover appellant's expenses for his company, Samurai Technology Corporation.

Appellee also testified to appellant's income; she received an email from appellant indicating that his compensation package was valued at approximately $400,000.

Appellee was not cross-examined.

At this point in the proceeding, appellee made a motion to strike, arguing that appellant did not make a prima facie case of unconscionability, and requested that the agreement be incorporated. The trial court found that there was "absolutely no evidence of appellant being tricked into signing the agreement." In making its ruling, the trial court noted that appellant testified "at a minimum" that the parties had financial discussions, none of which included references to reconciliation. Appellant then testified that appellee brought the agreement to appellant's home on January 11, 2016, and that he had it in his possession for approximately anhour and a half prior to signing it. The trial court also noted appellee's unrebutted testimony. Appellant "was the one who" sent her a template agreement. Perhaps motivated to finalize these matters prior to "leav[ing] the country," appellant signed the amended agreement several weeks later in February of 2016.

Regarding whether the agreement was "so one-sided," the trial court acknowledged that income and expense statements often reflect "a negative number" but continued that it did not "find [the agreement] so unconscionable, even on its face." The trial court mentioned that appellant qualified for a $1,000,000 loan and observed that appellant must either have "a lot of equity to offset that [sum] or no equity . . . [and a significant amount of] income." The trial court then granted appe...