Yazdani v. Sazegar

• Court: Virginia Court of Appeals
• Writing for the Court: OPINION BY JUDGE LISA M. LORISH
• Citation: Yazdani v. Sazegar, 76 Va.App. 261, 880 S.E.2d 865 (Va. App. 2022)
• Decision Date: 13 December 2022
• Docket Number: Record No. 1346-21-4
• Parties: Arastoo YAZDANI v. Soraya SAZEGAR

76 Va.App. 261

880 S.E.2d 865

Arastoo YAZDANI

v.Soraya SAZEGAR

Record No. 1346-21-4

Court of Appeals of Virginia, Arlington.

December 13, 2022

Adam Fleming for appellant.

Brandy M. Poss (Barnes & Diehl, P.C., on brief), Richmond, for appellee.

Present: Judges Huff, Raphael and Lorish

OPINION BY JUDGE LISA M. LORISH

Arastoo Yazdani (husband) and Soraya Sazegar (wife) entered into a marital separation agreement ("Agreement") resolving the issues in their pending divorce and agreeing to "reserve the issue of Wife's request for ... attorney[ ] fees ... for arguments to be heard by the Alexandria City Circuit Court" and "to follow the ruling of the Court upon the Court making its determination regarding" attorney fees. Husband now appeals the attorney fee award. As the Agreement's language did not clearly and unambiguously waive husband's right to appeal, we consider whether the attorney fee award was reasonable, readily conclude it was, and then grant wife's request for more attorney fees for the expenses she incurred in defending this meritless appeal.

BACKGROUND

The only issue here is the court's attorney fee award. To evaluate the reasonableness of the award, we briefly review the history between the parties.

Wife was visiting the United States on a tourist visa when she met husband on an online dating service. The two dated for a short time and then married in November 2018.

Eighteen months later, wife discovered that husband was receiving messages from the same dating service, introducing him to other active users on the site. After wife confronted him, husband tried to terminate the lease on the marital residence, asking wife to sign a notice to vacate form that cited "separation from spouse" as the reason for leaving the home. Wife refused to sign, and husband left the marital residence. Wife then filed for divorce on grounds of desertion in July 2020. Husband answered with a counterclaim, alleging in part that wife's "cruelty and emotional abuse" justified his departure from the marital home.

Four months after these initial filings, wife could no longer afford legal counsel, so her attorney had to withdraw from representing her any further on the divorce. About eight months later, however, wife borrowed $18,000 from her daughter so she could again retain her prior lawyer to assist with preparations for trial set for November 2021.

Upon being re-hired, wife's counsel issued discovery requests including interrogatories and requests for production in August 2021. Husband responded to wife's counsel on the day discovery was due, writing "I understand that the date to respond to your Discovery Request is today" and "I will consult my attorney ... to provide a response." Wife, through counsel, provided husband another six days to comply with the discovery requests, but husband again failed to comply. Three days following the extended deadline, husband continued to claim that his attorney would contact wife's counsel soon. Wife's counsel never heard from any attorney.

Wife's counsel then filed a motion for sanctions in September 2021, and husband—now represented by counsel—filed a flurry of motions in response seeking leave to amend his counterclaim, to continue the trial, and for an extension of time to respond to wife's discovery requests. In particular, husband sought leave to amend his existing counterclaim to add an allegation that wife only sought to marry him to obtain a green card, calling the marriage a "green-card sham." He also suggested wife could be subject to criminal penalties for violating immigration law. After a hearing on the pending motions, the court denied husband's request for a continuance, granted the motion for leave to amend his counterclaim, issued an order to compel discovery responses from husband, and awarded wife $1,500 in attorney fees.¹ The new allegations in the counterclaim led to depositions in October 2021, one month before trial.

On the first day of trial (about a year and a half after the parties’ separation), wife presented her case-in-chief. Husband did not pursue cross-examination to bolster his allegations of "cruelty and emotional abuse" or his claims that wife entered the marriage for fraudulent purposes.

At the close of day one, the court encouraged the parties to settle the matter. They reached consensus that night and formally signed the Agreement the next morning, presenting it to the court before the second day of trial was set to begin. The parties agreed to a no-fault divorce and settled all issues but attorney fees. The Agreement stated that "[t]he parties agree that they shall reserve the issue of Wife's request for ... attorney[ ] fees ... for arguments to be heard by the Alexandria City Circuit Court." Moreover, the parties "agree[d] to follow the ruling of the Court upon the Court making its determination regarding" attorney fees.

The court asked the parties whether they wanted to proceed with the matter of attorney fees that day, or whether they needed more time. Wife's counsel said she was ready to proceed. Husband's counsel did not respond or make any objection.

Wife then argued that husband had unnecessarily delayed settlement of the divorce, forcing her to borrow money from her family to pay for legal fees. She also argued that husband had refused to respond to discovery requests, requiring the court to issue an order to compel, and still provided incomplete documentation of his finances even after that order. Finally, she argued that husband's annulment claim based on alleged "green card fraud"—added late in the proceedings and ultimately retracted by husband—had been "deeply insulting" to wife.

Husband responded that he lacked counsel when he was receiving discovery requests, claimed that he had requested mediation with wife, and argued that he had provided all financial information to which he had reasonable access. He also argued that negotiation was a normal part of the litigation process and that he was not responsible for wife's legal expenses because the court could not have granted a divorce until one year following separation anyway.

After considering the parties’ arguments, the court awarded $33,948.64 in attorney fees to wife, finding that husband unnecessarily delayed settlement and resisted discovery. The court also noted that wife "can't be faulted for not being willing to sit down and have a four-way conference or mediation" when husband had failed to produce necessary discovery such that she was not "in possession of documents pertaining to debt and assets to facilitate a successful meeting." In sum, the judge stated that "efforts were made over and over again ... to try and resolve this matter," but husband "was so resistant [to settling] that ... it required a motion to compel and sanctions to get him to finally produce some, but not all," of the discovery wife had a right to receive.

Finally, the court deducted from the total fee award the fees expended before wife's motion for pendente lite relief (filed at the same time as her original complaint) as well as its prior fee award from the hearing on the motion for sanctions.

ANALYSIS

The only issue husband raises in this appeal is the court's award of attorney fees. His first assignment of error faults the court for awarding fees when the parties agreed to resolve the case as a no-fault divorce. He also assigns error to the court's decision to award fees "when Opposing Counsel was not Counsel of Record for all the time that was claimed." Wife argues that husband expressly waived any appeal of the attorney fee award in the Agreement. So we start there.

A. Husband did not clearly and unambiguously waive his right to appeal.

We have long held that a party may waive by contract any right conferred by law or contract. Agreements between divorcing spouses are no exception. Burke v. Burke , 52 Va. App. 183, 193, 662 S.E.2d 622 (2008) ("[P]ublic policy does not prevent the parties to a [property settlement agreement] from contracting away their right to appellate review of matters addressed therein."). This case does not question these general principles but asks us to determine whether specific language in an agreement was intended to waive all appellate review. In other words, we must interpret a contract. "The interpretation of a contract presents a question of law subject to de novo review." PBM Nutritionals, LLC v. Lexington Ins. Co. , 283 Va. 624, 633, 724 S.E.2d 707 (2012).

"Waiver is the voluntary and intentional abandonment of a known legal right, advantage, or privilege." Chawla v. BurgerBusters, Inc. , 255 Va. 616, 622, 499 S.E.2d 829 (1998). It flows naturally from the requirement that a waiver of a right be knowing, intelligent, and voluntary and that an agreement to waive a right must be clear and unambiguous. See Stanley's Cafeteria, Inc. v. Abramson , 226 Va. 68, 74, 306 S.E.2d 870 (1983) (explaining that the burden "rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence" (quoting Utica Mut. v. Nat. Indem. , 210 Va. 769, 773, 173 S.E.2d 855 (1970) )); Roenke v. Va. Farm Bureau Mut. Ins. Co. , 209 Va. 128, 135, 161 S.E.2d 704 (1968) ("A waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights."). In reviewing an agreement for evidence of waiver, "[c]ourts cannot read into contracts language which will add to or take away from the meaning of the words already contained therein." Southerland v. Estate of Southerland , 249 Va. 584, 590, 457 S.E.2d 375 (1995) (quoting Wilson v. Holyfield , 227 Va. 184, 187, 313 S.E.2d 396 (1984) ).

Our hesitation about inferring a waiver of rights absent express language is illustrated by Pysell v. Keck , 263 Va. 457, 559 S.E.2d 677 (2002). The pre-marital agreement there stated that the parties’ "rights to each other's property acquired by operation of law [i.e., statutory entitlements] shall be solely determined and fixed...