Pourbabai v. Pourbabai
| Decision Date | 21 August 2018 |
| Docket Number | Record No. 1532-17-4 |
| Parties | BEN POURBABAI v. CHRISTINE POURBABAI |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Petty, Malveaux and Senior Judge Annunziata
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathon A. Moseley for appellant.
Fred M. Rejali for appellee.
Ben Pourbabai (husband) appeals the circuit court's orders relating to his divorce from Christine Pourbabai (wife). Husband argues that the circuit court erred by (1) finding that the parties separated on or about December 1, 2015; (2) finding that the circuit court had jurisdiction over the divorce because the parties were not actual bona fide residents and domiciliaries of Virginia for at least six months preceding the filing of the divorce suit; (3) misinterpreting Code § 20-97 and its requirement that a party be a domiciliary and a bona fide resident of Virginia; (4) finding that "storing personal property in a room makes a residence;" (5) finding that the circuit court had subject matter jurisdiction over child custody and visitation; (6) relitigating equitable distribution when the Court of Familial Pleas of the Islamic Republic of Iran already had decided equitable distribution on October 16, 2016; (7) not admitting the Iranian court order into evidence and "not reconsidering that decision;" (8) failing to consider the equitable distribution factors and that on October 16, 2016, the Iranian court already had ordered husband to pay wife "$500,000 to$700,000;" (9) failing to consider the equitable distribution factors and that wife's "$3.5 million inheritance inside Iran, which was converted into a marital asset when . . . [h]usband sold real estate and borrowed against real estate at [w]ife's request to pay [w]ife's 35% inheritance tax in Iran in return for [w]ife's promise to share the inheritance with [h]usband;" (10) ordering the sale of all of the real estate in Virginia and Washington, D.C. as opposed to "(a) entering a monetary award or (b) granting [wife's] request to sell some real estate while leaving the rest to [husband];" (11) determining that all of the real estate was marital property; (12) "refusing to order a new trial on equitable distribution after [husband] had to fire his attorney for failing to present his evidence;" (13) not admitting husband's exhibits and evidence or "accommodating" his request to re-open his case after firing his attorney; (14) denying his request to present evidence from his accountant, who was subpoenaed but did not appear at the hearing, after the trial was concluded; (15) not enforcing the post-nuptial agreement between the parties "or at least considering it in equitable distribution;" (16) awarding sole custody of the children to wife and "refusing to admit other evidence of [w]ife's suicide attempts, psychological problems, false police reports concocting non-existent altercations, and mental instability;" (17) "denying [husband] visitation with his children conditioned on an anger management evaluation (A) restricted to a particular consultant (B) which [husband] cannot afford (C) without any evidence to justify such a requirement;" and (18) limiting husband's ability to present his case.1 We find no error, and affirm the decision of the circuit court.
"When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences."Menninger v. Menninger, 64 Va. App. 616, 618, 770 S.E.2d 232, 233 (2015) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003)).
Husband and wife married on December 22, 2002, and three children were born of the marriage. On December 15, 2015, wife filed a complaint for divorce, requesting a divorce based on the grounds of cruelty and constructive desertion. In the complaint, wife alleged that she and husband were bona fide residents and domiciliaries of Virginia and that husband had been a bona fide resident and domiciliary of Virginia for more than six months preceding the filing of the complaint. On January 29, 2016, husband filed an answer to the complaint for divorce and admitted the statements that they were bona fide residents and domiciliaries of Virginia. On February 12, 2016, husband filed a counterclaim for divorce and stated that he was a bona fide resident and domiciliary of Virginia and had been for more than six months preceding the filing of the suit.
On February 7, 2017, the parties appeared before the circuit court to determine custody and visitation. After hearing the evidence and argument, the circuit court issued its ruling from the bench on February 8, 2017. The circuit court considered the Code § 20-124.3 factors and awarded sole legal and physical custody of the children to wife. The circuit court expressed its "grave concerns about the psychological well-being" of husband and ordered him "to undergo a full-scale psychological evaluation by Dr. Edward Farber." The circuit court did not order visitation, but indicated that husband could file a motion for visitation after the court received the psychological evaluation and a report from the guardian ad litem, who was appointed at the hearing. The circuit court ordered that husband would be responsible for the costs associated with the psychological evaluation and the guardian ad litem. On March 17, 2017, the circuit court entered an order reflecting its ruling.
On March 17, 2017, husband filed a motion to dismiss the case, arguing that the court did not have subject matter jurisdiction because the parties were not residents of Virginia for at least six months prior to the filing of the complaint for divorce. Husband filed amended motions, and on May 8, 2017, the circuit court heard husband's motion to dismiss. Husband argued that in September 2013, the parties moved to Canada for wife to obtain her master's degree in business administration from the University of Toronto. Husband explained that he and wife found renters to live in the former marital residence in Virginia from April 1, 2014 until April 1, 2016. However, the renters vacated the property before the lease expired, and the house was vacant when the parties returned to Virginia in June 2015. Wife testified that they kept personal property in one of the rooms in the house while they were in Canada. Furthermore, wife asserted that husband maintained his residence in Virginia while she and the children lived in Canada. Wife explained that husband spent "more than two weeks a month" in Virginia because he had to manage their rental properties. On cross-examination, husband admitted that he frequently traveled in and out of Canada while wife attended school.
Wife presented evidence of their intent to maintain their domicile and residence in Virginia. While they were in Canada, both husband and wife maintained Virginia driver's licenses. Wife continued to receive mail at the former marital residence in Virginia. While wife attended school in Canada, husband and wife paid taxes to the Commonwealth of Virginia and the United States. On their tax returns, both parties claimed to be Virginia residents. Husband admitted that he never filed a Canadian tax return because "[w]e weren't residents or Canadian citizen[s]." Wife testified that she never asked for residency in Canada and explained that, when she went to the University of Toronto, she received a student visa and her children received visitor's visas.
The parties offered contradictory testimony about their future plans after wife graduated. Husband testified that they intended to stay in Canada after wife graduated, while wife testified that she intended to return to the United States for employment and that she declined the employment offers in Canada she received as a result. When wife completed her coursework in October 2014 and the parties' children finished the school year, the parties left Canada and returned to the former marital residence in Virginia on June 30, 2015, bringing with them all their furniture.
From July 5, 2015 through August 27, 2015, wife and the children visited Iran. Husband testified that wife went to Iran to "look for job opportunities" and "explore living conditions," a view contradicted by a contemporaneous email husband wrote, stating the family was going to Iran for "summer vacation." Wife also testified that she went for a vacation, as evidenced by her purchase of round-trip airline tickets with a return date before school started. Furthermore, husband admitted that since July 1, 2015, he has lived in and been a resident of the Commonwealth of Virginia. Wife testified that she has considered herself a resident and domiciliary of Virginia for the last fourteen years.
After hearing the parties' evidence and argument, the circuit court found that "both parties maintained their home in Great Falls as their permanent abode;" in short that both husband and wife are permanent citizens of the United States and that they were residents and domiciliaries of Virginia in the six months preceding the filing of the divorce suit. The circuit court noted that both parties filed Virginia and federal tax returns and, on those tax returns, they listed the former marital residence as their address. The circuit court accepted wife's testimony that they went to Canada temporarily and, that "once the wife finished her class work, the plan was to stay until the children finished school and returned the day after school ended." Based on the evidence presented, the circuit court, at the conclusion of the hearing on May 8, 2017,entered an order dismissing husband's motion to dismiss for lack of jurisdiction. Husband filed a motion to reconsider, which the circuit court denied by order entered on July 24, 2017.
On June 20 and 21, 2017, the circuit court heard evidence on the outstanding issues of grounds for divorce, equitable distribution,...
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