Rahnema v. Rahnema

• Decision Date: 14 February 2006
• Docket Number: Record No. 0162-05-1.
• Citation: 47 Va. App. 645,626 S.E.2d 448
• Court: Virginia Court of Appeals
• Parties: Mansur RAHNEMA v. Shahla RAHNEMA.

626 S.E.2d 448

47 Va. App. 645

Mansur RAHNEMA v. Shahla RAHNEMA.

Record No. 0162-05-1.

Court of Appeals of Virginia, Chesapeake.

February 14, 2006.

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James Ray Cottrell (Martin A. Gannon; David H. Fletcher; Chistopher W. Schinstock; Kyle F. Bartol; John K. Cottrell; Gannon & Cottrell, P.C., on briefs), Alexandria, for appellant.

Glenn R. Croshaw (Peter V. Chiusano, Virginia Beach; Kimberly L. Stegall, Norfolk; Willcox & Savage, P.C., on brief), for appellee.

Present: FRANK, KELSEY and HALEY, JJ.

D. ARTHUR KELSEY, Judge.

In Rahnema v. Rahnema, 2000 WL 251679, 2000 Va.App. LEXIS 163 (March 7, 2000) (Rahnema I), we affirmed the trial court's enforcement of a marital agreement between Dr. Mansur Rahnema and Shahla Rahnema. Four years later, Dr. Rahnema filed an annulment action seeking to declare his prior marriage to Ms. Rahnema void as bigamous and the agreement unenforceable as a consequence. The trial court, sitting as factfinder, found Dr. Rahnema's evidence of bigamy unpersuasive and entered final judgment dismissing the annulment action with prejudice.

Finding no error in the trial court's judgment, we affirm.

I.

A. BACKGROUND & PRIOR PROCEEDINGS

The parties married in 1993. Three months later, they entered into an agreement specifying Ms. Rahnema's property and support rights in the event of a divorce and granting her a contractual right to 80% of Dr. Rahnema's assets upon his death. The marriage ended in divorce in 1999. After we approved this agreement in Rahnema I,¹ the case continued on the circuit court's docket for several years. The court scheduled the final equitable distribution hearing in April 2004. The day before the hearing, Dr. Rahnema filed this annulment action seeking to declare his marriage void due to Ms. Rahnema's alleged bigamy.² Dr. Rahnema also became the complaining witness in a criminal action against Ms. Rahnema charging bigamy. The criminal jury trial ended with an acquittal in August 2004.

B. PRETRIAL DISCOVERY DISPUTES

In support of his annulment action, Dr. Rahnema scheduled two overseas depositions in October 2004. The first was taken in London of Hedayatollah Mortazavi, an Iranian national. Mortazavi claimed to witness Ms. Rahnema's prior divorce from another man and to recognize a handwritten copy of the Iranian divorce decree showing the divorce took place after her marriage to Dr. Rahnema.

Dr. Rahnema also attempted to take a deposition of Ms. Rahnema's alleged former spouse, Mohammad Hossein Alizadeh, in Istanbul, Turkey. The deposition was originally scheduled for London, changed with notice to Ankara, and then changed without notice to Istanbul. The deposition actually took place a day after the date specified in the amended deposition notice. Ms. Rahnema's counsel did not attend this deposition. The witness testified in an unidentified foreign language and dialect (presumably some variation of Farsi) while an interpreter translated the witness's responses into English. The interpreter, however, presented no credentials verifying his competence to translate the witness's language and dialect into English.

Dr. Rahnema's counsel began and finished her questioning of the witness before the court reporter arrived. The court reporter, Tamar Koçyan, showed up just as the interview had ended. Koçyan obtained two audiotapes of the interview and later produced a document entitled "Official Transcription." Identifying herself as a Turkish "Sworn Translator" and "Notary Public," Koçyan's transcription stated that she "transcribed the English parts" of the audiotapes "to the extent" she could understand them. "Any parts left blank, marked as xxx or written wrong," Koçyan noted, were "due to [her] inability to understand the exact words."

The circuit court entered a scheduling order setting the trial date as October 18, 2004. The order required each party to produce exhibit and witness lists ten days before trial and to file objections to those lists no later than five days before trial. Untimely objections, the order stated, would be "deemed waived absent leave of court for good cause shown." Shortly after the entry of the scheduling order, the trial date was continued to December 13, 2004. Neither the parties nor the trial court, however, amended the scheduling order to reflect this change.

In another pretrial order, entered in the parallel equitable distribution case, the circuit court directed that all "exhibits admitted at the trial" of the criminal case against Ms. Rahnema "be transferred" to the annulment case. Prior to the December 13 trial in the annulment action, Dr. Rahnema filed an exhibit list that included, among other things, all of the "Commonwealth's exhibits" from the criminal trial as well as the "transcript of the criminal trial." Dr. Rahnema also listed as exhibits the de bene esse deposition taken in London and Koçyan's "Official Transcription" she made from the audiotapes recorded in Istanbul.

C. THE ANNULMENT TRIAL

Four days before trial, Ms. Rahnema filed a motion in limine to preclude the use of the "Official Transcription" of the Istanbul witness as a de bene esse deposition. The trial judge asked the parties to address the motion in limine at the start of the trial. Ms. Rahnema argued that the "Official Transcription" violated multiple procedural requirements governing the taking and use of foreign de bene esse depositions. See Rules 4:3, 4:5, 4:7 & 4:7A.³ In response, Dr. Rahnema argued that Ms. Rahnema's objections should be deemed untimely pursuant to the pretrial scheduling order.

The trial judge did not rule on the specific procedural objections raised by Ms. Rahnema. Instead, he found the transcription too unreliable to have any evidentiary weight in any event. Koçyan's "Official Transcription," the trial judge stated, could not "be relied upon by the Court with any degree of certainty in making a determination that this Court has to make with regard to the very important issue which is before the Court...." The judge came to this conclusion because the document "was really not a deposition at all, but was an audiotape which was later supposedly, I guess, translated and transcribed subsequent to the actual occurrence of it." Particularly troublesome for the trial judge was

the fact that it was taken by audiotape beforehand, [and] we don't have the audiotapes. There is no way for us to know whether or not the transcription was accurate from the audiotapes. It's too unreliable, and the Court is not going to consider it.

The "method of taking the deposition," the trial judge concluded, rendered the final product inherently untrustworthy.

Dr. Rahnema then sought to introduce into evidence the testimony given by his brother, an 84-year-old Iranian national, during the criminal trial. Ms. Rahnema objected, arguing that this evidence did not satisfy the requirements of the former testimony exception to the hearsay rule. In response, Dr. Rahnema took the witness stand and testified that his brother intended to stay in the United States for the annulment trial which was initially scheduled for October 2004. When the trial was continued to December 2004, his brother decided to return to Iran. Dr. Rahnema admitted he did not ask his brother to testify at the rescheduled trial because of concerns about his health. Dr. Rahnema added that he was familiar with correspondence between counsel addressing the possibility of a de bene esse deposition being taken of his brother. No such deposition, however, ever took place. Finding the evidence of unavailability unpersuasive, the trial judge sustained Ms. Rahnema's objection to the use of the transcript from the criminal trial.

The next dispute at trial involved Dr. Rahnema's request that the prosecution exhibits from the criminal trial be admitted in the annulment proceeding. Dr. Rahnema argued that a prior order in the related divorce case "transferred every exhibit from the criminal trial to this case." The trial judge agreed, noting that the criminal trial exhibits were "all here" allowing him "to consider all of those exhibits." "All right, sir," Dr. Rahnema's counsel replied. Neither party objected to the trial judge's decision to consider these exhibits.

The trial judge then confirmed his understanding: "So now I have before me the exhibits previously filed in this suit, additional exhibits filed in the criminal trial of Ms. Rahnema, and an original deposition as previously set forth on the record which was taken in London. Now, with that having been said, what's next?" It was at this point during the trial, Dr. Rahnema concedes, that both the prosecution and defense exhibits from the criminal case "were received into evidence" by the trial judge. See Appellant's Brief at 8 (citing J.A. 497).

Dr. Rahnema then ended his case-in-chief with his only live witness, Armad Askarinan, an Iranian cab company owner living in Sweden. Testifying through an interpreter, Askarinan claimed to be familiar with "marriage and divorce registry books in Iran" because prior employment in Iran gave him access to such records. He testified that, under Iranian law, a wife could not travel abroad without her husband's permission. The Iranian passport, he added, would reflect whether such permission had been given. By agreement, the parties then read into evidence a portion of Askarinan's testimony at Ms. Rahnema's criminal trial. In it, Askarinan described his visit to the Iranian registry office and his videotaping of Ms. Rahnema's alleged prior marriage certificate. The videotape was replayed for the trial judge.

Dr. Rahnema also presented to the trial judge a copy of a discovery order entered in the equitable distribution proceeding. The order directed Ms. Rahnema to produce copies of any passport in her possession. Dr. Rahnema had an incomplete copy of her Iranian passport, as it lacked the information showing her marital status. The failure to produce...