Stark v. Dinarany

• Citation: 865 S.E.2d 440,73 Va.App. 733
• Decision Date: 30 November 2021
• Docket Number: Record No. 0166-21-4,Record No. 0356-21-4
• Parties: John STARK v. Firouzeh DINARANY Firouzeh Dinarany v. John Stark
• Court: Virginia Court of Appeals

73 Va.App. 733

865 S.E.2d 440

John STARK

v.Firouzeh DINARANY

Firouzeh Dinarany

v.John Stark

Record No. 0356-21-4

Record No. 0166-21-4

Court of Appeals of Virginia.

NOVEMBER 30, 2021

Tara Steinnerd Talley (Steinnerd Law PLLC, on briefs), for John Stark.

Minji Kim (Alanna C.E. Williams ; Cook, Craig & Francuzenko, PLLC, on briefs), for Firouzeh Dinarany.

Present: Judges Beales, Russell and Senior Judge Haley

OPINION BY JUDGE RANDOLPH A. BEALES

In these companion appeals, both John Stark and Firouzeh Dinarany appeal from a divorce decree of the Circuit Court of Fairfax County. Stark argues on appeal that "[t]he trial court erred by including the parties’ post-nuptial agreement into evidence" and further challenges the trial court's decisions on spousal support and equitable distribution. Dinarany also challenges the trial court's rulings on spousal support and equitable distribution and further argues that the trial court erred in its apportionment of attorney's fees.¹

I. BACKGROUND

Stark and Dinarany were married on December 18, 2012. They have a daughter together, who was born during the marriage. Dinarany also has a son from a prior marriage.

At the time of the marriage, Stark served in the United States Army. He continued to serve until late 2016, when he retired from the Army and accepted a position as a diplomat with the United States Department of State. According to Stark, he served more than twenty-five years in the Army in total – the last four of which he served while married to Dinarany. Due to his military service, Stark earns a monthly retirement pension from the Army.

The parties own a home in McLean, Virginia, which they acquired during the marriage. In Stark's complaint for divorce, he stated that the parties "had tenants scheduled to move into the home in August, 2019" but alleged that Dinarany "unilaterally cancelled the contract for the tenants" and moved into the McLean home with the children at the end of July 2019. The parties thus separated at the end of July 2019. After the parties separated, Stark continued making mortgage payments on the McLean home until April 2020, after which he placed the home in mortgage forbearance. Stark testified that the forbearance permitted him to defer mortgage payments for up to one year with no penalty and that he would then pay back the deferred payments at the end of the forbearance period. He further testified that, as the only party named as liable on the mortgage, he did not need Dinarany's consent for the forbearance.

Stark and Dinarany executed two agreements that are relevant to these appeals. On December 17, 2012, the day before their marriage, they executed a prenuptial agreement. The prenuptial agreement contained a paragraph entitled "Dissolution of Marriage," which stated that "it is the express intention of John and Firouzeh that the following provisions shall prevail in the event of a dissolution" of the marriage:

a. Each party shall have an equal interest in all property acquired by either party during the course of the marriage (except property that is merely the result of an increase in the value of property owned separately by the parties prior to the marriage, as listed on the attached schedules).

b. All savings, investments, retirement accounts, and all property listed on the attached schedules as separate property (owned by a party prior to the marriage) shall remain the separate property of that party who brought such property into the marriage, including any appreciation, income, or other increase to such property.

c. All joint property and accounts shall be divided equally.

d. The parties shall have joint custody of any children born to or adopted into the marriage. Such joint custody entitles each party to equal visitation time, or time which is otherwise fair and equitable.

The agreement also provided that "in the event of a marital separation or dissolution, it is agreed and understood that neither party shall seek or obtain any form of alimony or support from the other, or seek any relief, other than a distribution of their joint property interests or those property interests acquired during the course of the marriage, in any manner other than as provided by this Agreement." In addition, the prenuptial agreement contained a provision governing revocation, which stated that any subsequent revocation "shall be ineffective until recorded with the recorder in the county where the parties maintain their primary residence or both counties if the parties are maintaining separate residences in separate counties."

The parties subsequently executed a postnuptial agreement on August 17, 2016. The postnuptial agreement is a one-page document that contains one operative provision, which says, "In consideration of the marriage between the parties, the parties mutually agree to the following: The pre-nuptial agreement of December 17, 2012 is nullified." The postnuptial agreement was signed by both parties and sworn before a notary.

Stark filed for divorce on April 13, 2020. In his complaint for divorce, Stark asked for a divorce "on the grounds of desertion" and requested specific and general relief from the trial court, including "[t]hat he be awarded physical and legal custody of the minor child of the parties; ... [t]hat the Court divide, transfer or partition marital property which is titled in the names of both parties; ... [t]hat the Court grant to Plaintiff a monetary award, payable in either a lump sum or over a period of time in fixed amounts; [and] [t]hat he may be granted any and such further relief pursuant to Sections 20-107.1, 20-107.2 and 20-107.3 [.]" The complaint did not refer to any prenuptial agreement between the parties. Dinarany filed a counterclaim for divorce on April 21, 2020, in which she asked for legal and physical custody, spousal support, child support, equitable distribution, attorney's fees, and "such other remedies as are available to her pursuant to the Court's equitable distribution and spousal support award powers[.]" A trial date was set for October 26, 2020. In setting the trial date, the circuit court entered a scheduling order providing that "[t]he parties shall complete discovery, including depositions, by thirty (30) days before the applicable trial date[.]"

During discovery, Stark produced the prenuptial agreement for the first time. Dinarany claimed that she then provided a copy of the postnuptial agreement to her counsel the following day. Dinarany's counsel claimed that he then sent the postnuptial agreement to Stark and his counsel. Stark's counsel denied receiving a copy of the postnuptial agreement and further argued that Dinarany and her counsel failed to produce any documents relevant to equitable distribution before the discovery deadline set by the scheduling order. Consequently, Stark filed a motion in limine seeking to exclude Dinarany's proposed financial exhibits as well as the postnuptial agreement itself. In the motion in limine , Stark argued that "[t]his property/support case is governed by a pre-nuptial agreement, which was properly disclosed in Plaintiff's discovery responses." In response, Dinarany argued that the postnuptial agreement nullified the prenuptial agreement and that Stark could not claim to be surprised by the postnuptial agreement given that he signed it and knew about it. The circuit court held a hearing on the motion in limine and subsequently entered an order barring Dinarany's financial exhibits from trial but ruling that "Defendant [Dinarany] may present the Post-Nuptial Agreement[.]" The following Monday, October 26, 2020, was the first day of trial. On the morning of October 26, Dinarany's counsel recorded the postnuptial agreement in the Circuit Court of Fairfax County.

At trial, Stark testified that the parties signed a prenuptial agreement the day before the marriage. He then moved to admit both the prenuptial agreement and the postnuptial agreement into evidence. The trial judge stated, "Well, just by admitting it, I'm not saying that I'm going to enforce it. Obviously, you two are ... disputing as to whether it is enforceable or not. I think I need ... to review both agreements plus all the evidence to determine whether it is enforceable[.]" Stark's counsel replied, "Of course." Stark's counsel subsequently reiterated, "I don't have a problem with that coming in," and stated shortly thereafter,

They are trying to say that Mr. Stark absolutely knew there was a postnup. We're not objecting to that. Of course, he knew there was one. We never said otherwise. He didn't have a copy of it, and he had no idea if it was going to be produced or not. They did produce it after the deadline. Again, we don't have a problem with it coming in.

The parties disputed whether the postnuptial agreement effectively revoked the prenuptial agreement according to the provision that any revocation "shall be ineffective until recorded with the recorder in the county where the parties maintain their primary residence or both counties if the parties are maintaining separate residences in separate counties," which involved a lengthy factual dispute over Stark's residence for purposes of the agreement. The trial court subsequently ruled that the recorded postnuptial agreement would be admissible and that the postnuptial agreement revoked the prenuptial agreement. The trial judge noted that "this Court, in particular me, takes very seriously the rules in discovery," but also noted that "[t]he problem in this particular case is that what is sought to be excluded is a particular item of evidence, an agreement, that both parties ... an agreement that both parties knew existed." Continuing, the trial judge noted that "in this case, there are unusual circumstances that – this is not an expert report sought to be admitted or some item of evidence where the plaintiff doesn't know exactly what they've signed.... This is an item of evidence that both parties knew existed and signed." On the issue of...