Rahbaran v. Rahbaran

• Decision Date: 23 December 1997
• Docket Number: Nos. 2700-96-4,2858-96-4,s. 2700-96-4
• Citation: 26 Va.App. 195,494 S.E.2d 135
• Parties: KAMRAN RAHBARAN v. SARA RAHBARAN. SARA RAHBARAN v. KAMRAN RAHBARAN Record
• Court: Virginia Court of Appeals

Page 135

494 S.E.2d 135

26 Va.App. 195

KAMRAN RAHBARAN v. SARA RAHBARAN.

SARA RAHBARAN v. KAMRAN RAHBARAN

Record Nos. 2700-96-4, 2858-96-4.

Court of Appeals of Virginia,

Alexandria.

Dec. 23, 1997.

Fred M. Rejali, McLean, for Kamran Rahbaran.

(Manuel Trigo, Jr., Weslaco, TX, on briefs), for Sara Rahbaran.

Present: FITZPATRICK, C.J., ^* and BAKER and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Kamran Rahbaran (husband) appeals the final decree of the trial court, contending the trial court erred by refusing to award him the separate portion of his business, awarding Sara Rahbaran (wife) spousal support, and refusing to order wife to pay his attorney's fees. Wife cross-appeals, contending the court erred in determining child and spousal support, the equitable distribution award, and when awarding custody of the parties' minor children. Husband contends the wife's appeal should be dismissed because she filed her opening and reply briefs without the signature of a member of the Virginia State Bar. We agree and dismiss wife's cross-appeal. We further affirm the trial court's decision with respect to the issues raised by husband in his appeal.

The parties were married in 1984; two children were born of the marriage. After a period of separation, wife filed for divorce in 1995. The report of the commissioner in chancery found that both parties had committed adultery and that the adulterous conduct on both their parts contributed to the dissolution of the marriage. The commissioner recommended that a divorce be granted on the ground that the parties had lived separate and apart for more than one year.

In 1983, prior to the marriage, husband's father transferred $34,382.56 to him from a foreign account. Husband used this money to open Royal Shoe, his first business. In 1986, after the parties married, husband moved the Royal Shoe inventory to a new location and opened Kami, Inc., utilizing the Royal Shoe inventory and additional funds provided to him by his father in the amount of $79,993. Husband's half-brother testified that their father had transferred nearly $105,000 in funds to husband. Husband did not maintain separate records of his business and personal expenses, keeping one checking account for both.

During the course of the litigation, sanctions were imposed against wife on various grounds. Two motions for contempt she brought against husband were ruled frivolous, warranting sanctions in the amount of $750. Wife was sanctioned an additional $750 for making a significant misrepresentation of fact to the court. Wife also violated a court order to not remove the parties' children from the Washington area by taking them to Mexico. As a result, she was sentenced to serve one day in jail for contempt of court. Over the entire course of litigation, wife was sanctioned four times and held in contempt once.

On March 21, 1996, ruling from the bench, the court granted a divorce on the ground of the parties having lived separate and apart for one year and divided the assets and debts of the parties. The court treated Kami, Inc. as a marital asset and valued it at $158,000. The court noted that both husband and wife were guilty of adultery, but, concluding that it would be unjust to deny wife spousal support, it awarded her $28,000 per year in spousal support. Upon a motion for reconsideration, the court reduced its award of spousal support, noting that its previous figure of $28,000 per year mistakenly incorporated an earlier order of child support. The court awarded sole custody of the parties' children to the father. The parties' respective requests for payment of attorney's fees were denied. The court entered a final decree of divorce reflecting these decisions on October 18, 1996.

I. Dismissal of Wife's Appeal

On April 18, 1996, wife's counsel, Manuel Trigo, Jr., a member of the State Bar of Texas but not of the Virginia State Bar, was admitted to practice in the Circuit Court of Fairfax County pro hac vice. Wife's local counsel, Jahangir Ghobadi, moved to withdraw on May 9, 1996, citing unpaid fees. According to the record, the trial court never ruled on Ghobadi's motion to withdraw. However, only foreign counsel signed the notice of appeal and the briefs filed in this Court.

The circumstances under which foreign counsel are permitted to practice before this Court are well delineated in our jurisprudence. In the exercise of its authority to establish rules governing the admission of attorneys pro hac vice in its courts, Leis v. Flynt, 439 U.S. 438, 441-42, 99 S.Ct. 698, 700-701, 58 L.Ed.2d 717 (1979) (per curiam ), the Supreme Court of Virginia has enacted Rule 1A:4, which provides:

An attorney from another jurisdiction may be permitted to appear in and conduct a particular case in association with a member of the Virginia State Bar, if like courtesy or privilege is extended to members of the Virginia State Bar in such other jurisdiction. The court in which the case is pending shall have full authority to deal with the resident counsel alone in all matters connected with the litigation. If it becomes necessary to serve notice or process in the case upon counsel, any notice or process served upon the associate resident counsel shall be as valid as if personally served upon the nonresident attorney.

Except where a party conducts his own case, a pleading, or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by a member of the Virginia State Bar.

It is uncontested that wife's papers were not "signed by a member of the Virginia State Bar" as required by Rule 1A:4. Ghobadi's name does not appear on the notice of appeal, opening brief, or reply brief. Under Rule 1A:4, therefore, wife's briefs are "invalid" because they were not signed by a member of the Virginia State Bar. The question before us is whether the failure to have a member of the Virginia State Bar act as local counsel and sign the notice of appeal and briefs justifies dismissal of the appeal. This is an issue of first impression in Virginia.

The Rules of this Court which husband cites in support of his argument do not expressly provide that dismissal of an appeal shall follow from foreign counsel's failure to associate and appear with local counsel. ¹ Our Rules do not specifically address the effect on court proceedings of Rule 1A:4 and its declaration rendering "invalid" all papers required to be served which do not contain the signature of local counsel. It would nonetheless follow logically and from the clear language of the Rule that an "invalid" document is, necessarily, a legally ineffective predicate for a court proceeding. We have held that, in the exercise of our discretion, we may dismiss an appeal in which no opening brief has been filed or in which the opening brief does not comply with our rules. See Uninsured Employers' Fund v. Coyle, 22 Va.App. 157, 159, 468 S.E.2d 145, 146 (1996).

The failure to have local counsel's signature on the notice of appeal and the briefs implicates the fundamental supervisory power of this Court over the practice of law in this forum. "The right to practice law in Virginia is governed by statute as supplemented by the Rules of the Supreme Court of Virginia." Brown v. Supreme Court, 359 F.Supp. 549, 553 (E.D.Va.1973), aff'd, 414 U.S. 1034, 94 S.Ct. 534, 38 L.Ed.2d 327 (1973) (mem.); see also Horne v. Bridwell, 193 Va. 381, 384, 68 S.E.2d 535, 537 (1952). While the matter is addressed by rule and statute, this Court has the inherent power, apart from statute or rule, to inquire into the conduct of any person to determine whether that individual "is usurping the functions of an officer of the court and illegally engaging in the practice of law and to put an end to such unauthorized practice where found to exist." Richmond Ass'n of Credit Men v. Bar Association, 167 Va. 327, 335-36, 189 S.E. 153, 157 (1937); see also Blodinger v. Broker's Title, Inc., 224 Va. 201, 205, 294 S.E.2d 876, 878 (1982) (citing Richmond Ass'n of Credit Men, 167 Va. at 335, 189 S.E. at 157). Our response to the contention that wife's appeal should be dismissed is necessarily viewed in the context of a violation of Virginia law. ²

Thus, while we recognize that "there is no jurisdictional requirement that a litigant file a brief," Smith v. Virginia Transit Co., 206 Va. 951, 953, 147 S.E.2d 110, 112 (1966), we are persuaded that under the dictate of our rules, together with that of Rule 1A:4 and Virginia's regulations governing the unauthorized practice of law in our courts, wife's appeal must be dismissed. ³

II. The Equitable Distribution of Husband's Business

Husband argues on appeal that the trial court should have treated as separate property a portion of his business, Kami, Inc., on the ground that its predecessor was partially funded by his father in 1983 before the marriage and that, after the marriage, it was further funded by his father by monetary gift to husband in 1986. A decision regarding equitable distribution rests within the sound discretion of the trial court and will not be reversed unless it is plainly wrong or without evidence to support it. McDavid v. McDavid, 19 Va.App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan, 10 Va.App. 728, 732, 396 S.E.2d 675, 678 (1990)).

The trial court held that in light of the abundant evidence of husband's commingling of the 1983 transfer funds with marital funds, "the funds from the 1983 transfer were transmuted into marital property due to its commingling with marital funds." On appeal, husband contends that this ruling was "a clear misapplication of the current state of the law which allows for the tracing of commingled funds." Wife responds that the 1983 transfer funds were properly deemed transmuted because husband produced no evidence that "the money from the 1983 wire transfer was kept separately."

The General Assembly adopted the concept of hybrid property in 1990 and...