Zedan v. Westheim

• Decision Date: 07 August 2012
• Docket Number: Record No. 2570–11–4.
• Parties: Faysal M. ZEDAN v. Sylvie E. WESTHEIM.
• Court: Virginia Court of Appeals

60 Va.App. 556

729 S.E.2d 785

Faysal M. ZEDAN

v.Sylvie E. WESTHEIM.

Record No. 2570–11–4.

Court of Appeals of Virginia. Alexandria.

Aug. 7, 2012.

J. Thomas Fromme, II (The Law Offices of J. Thomas Fromme, II, PC, on briefs), for appellant.

Ryan M. Witkowski, Falls Church (Caroline D. LaForge; The Condo Law Group, P.C., on brief), for appellee.

Present: FELTON, C.J., McCULLOUGH and HUFF, JJ.

McCULLOUGH, Judge.

Faysal M. Zedan (“father”) was held in contempt of court for failing to pay child support pursuant to the parties' final decree of annulment. He appeals this ruling, raising ten assignments of error.¹ Sylvie E. Westheim (“mother”) assigns cross-error to the trial court's decision to credit tuition payments made by father on behalf of the children towards his child support obligation. We hold that Code § 20–99.1:1(A) required notice to father of the proposed entry of the final decree of annulment because father had filed an answer. We reverse the finding of contempt on the ground that no evidence establishes that father ever received notice of the decree of annulment that establishes father's child support obligation. We further reverse the trial court's award of a credit toward father's child support obligation based on tuition payments made by father. We hold, however, that the failure to provide father with notice of the proposed entry of the decree of annulment does not render the annulment decree void ab initio. Therefore, father may not collaterally attack the annulment decree more than five years after it became final. Finding the decree to be valid, we reject father's remaining assignments of error, and remand for further proceedings to determine how father should be brought into compliance with the child support provisions of the annulment decree.

BACKGROUND

I. FATHER'S AND MOTHER'S MARRIAGE IS ANNULLED ON THE GROUND OF BIGAMY.

Father and mother were wed in 1995, in New York. Three children were born to father and mother. In December of 2004, father and mother executed a separation, custody, support, and property settlement agreement. Under this agreement, father agreed to pay $1,000 per month for each child as child support, increasing automatically by five percent each year until the child reached the age of 22 or graduated from college. Father also agreed to pay $3,500 per month in spousal support until wife remarried or was deceased. This agreement was never incorporated into a court order.

Then, in June of 2005, mother filed a bill of complaint seeking the annulment of the marriage on the ground of bigamy. Mother alleged that father had married another woman in 1966 and that he was still married to this other woman when he and mother purported to marry.

Mother mailed father an “answer and grounds of defense” that was prepared by mother's lawyer. The answer consists of the following:

Your Respondent, Faysal M. Zedan, respectfully represents as follows:

1. I am in receipt of the Subpoena in Chancery and the Bill of Complaint in the above-referenced matter.

2. The allegations in the Bill of Complaint are admitted.

[60 Va.App. 566]3. Respondent agrees that he is responsible for paying child support in the amount of __$7,000.00______ per month each month beginning on the first day of the month next following the entry of any Order of annulment for such time as is provided by the Code of Virginia (1950), as amended.

Father, who resided in the Republic of Ghana at the time, signed the answer on July 12, 2005 at the United States embassy in Accra. The substance of father's answer appears on one page and his signature appears on a different page. Father then mailed a copy of this answer to mother, who turned it over to her attorney.²

On January 24, 2006, the Circuit Court for Fairfax County entered a final decree of annulment declaring the marriage void ab initio on the ground of bigamy. Consistent with father's answer, the decree ordered father to pay $7,000 per month in child support, beginning February 1, 2006. The order is styled “we ask for this” and is signed by counsel for mother. Neither father nor an attorney for father endorsed the order. The order lists as a residential address for father “Mohammed Rifa Street # 8441, Jetta, Saudi Arabia.”

II. CHILD SUPPORT ENFORCEMENT PROCEEDINGS AGAINST FATHER

On October 3, 2011, while father was on a visit to the United States, mother filed a rule to show cause alleging that father had failed to pay child support as ordered by the court. In response, father filed a motion to vacate the final decree of annulment and the child support provisions of that decree. Father argued that he had never received notice of this order. He asked that the court declare void the annulment decree and dismiss the rule to show cause.

At a hearing, father testified that while he was working in Ghana, mother sent a document to him and urged him to sign it. He said that the page attached to the signature page was “a different page” from the one in the court file, although it was “perhaps a divorce paper.” According to father, there were no dollar figures in the document that he signed. Father testified that mother told him she needed a divorce paper in order to obtain a green card. He said he signed the paper “just to help her out.”

Following his stay in Ghana, father next worked in Riyadh, Saudi Arabia, and from there he moved to Bahrain. He testified that the first time he saw the decree of annulment was when he arrived in the United States in November of 2011. Father said that he did not reside at the address listed on the final order, that there is in fact no such address, and that the City of “Jetta” as listed on the divorce decree is not an accurate spelling of the City of Jeddah. ³

Father introduced into evidence an “ROA Report” from Fairfax County Circuit Court listing activities in the case. The sheet does not show mailing or service of the final decree of annulment.

On cross-examination, father acknowledged sending an email in 2006 in which he addressed mother as “dear ex-wife.” This electronic mail message, labeled Plaintiff's Exhibit 12, was never moved into evidence.

For her part, mother denied any trickery. She testified that her attorney prepared the answer, she forwarded it to father by mail, and father mailed it back to her after he signed it.

The evidence showed that father made regular monthly payments to mother, but those payments fluctuated significantly from month to month. Some exceeded the amounts owed under either the separation agreement or the decree of annulment, while other payments fell short. Mother offered financial documents showing, based on a $7,000 monthly obligation, that father owed child support arrears in the amount of $205,140.72.

Father testified that he paid tuition amounting to $25,758 for the three children to attend school in Bahrain for one semester. The payments were actually made by the Zedan Group, which is owned by father's brother. Father considered these payments a loan to him from the Zedan Group. According to father, mother “picked the school” and arranged for the children to attend. When asked at trial whether there was an agreement with respect to whether these tuition payments would “enter into support issues,” father said he did not need an agreement. Mother testified that she never asked him to pay for the children's education. Instead, she “asked him for child support.”

At the conclusion of the hearing, the court expressly rejected father's testimony that he did not sign the answer to the petition for annulment and that he did not answer the suit. Instead, the court credited mother's testimony. The court found father in contempt, and assessed the child support arrearage in the amount of $205,140.72. The court concluded that Code § 20–99.1:1 applied only in those situations where the defendant has accepted service or waived service. Here, the court noted, the defendant had filed an answer. The court found that father had not met his burden under Code § 8.01–428(C) to set aside the annulment decree. Finally, the court awarded father a child support credit for the $25,758 based on the payments he made for the children's tuition.

ANALYSIS

I. LACK OF NOTICE PRECLUDES A FINDING OF CONTEMPT BUT DOES NOT RENDER THE DECREE OF ANNULMENT VOID.

We first address three interrelated assignments of error: (1) the trial court erred in concluding that mother properly complied with Code § 20–99.1:1; (2) the trial court erred in holding father in contempt and incarcerating him as there was no evidence of a willful or intentional disobedience of a court order by the father; and (3) the trial court erred in failing to vacate the final decree because there was no evidence that father was given notice of the decree.⁴

A. Code § 20–99.1:1(A) requires notice to a defendant prior to entry of orders when the defendant has filed an answer.

Father's first assignment of error with regard to the notice or lack thereof is that the trial court erred in holding that mother compliedwith the requirements of Code § 20–99.1:1(A). That code provision provides that

A defendant in such suits may accept service of process by signing the proof of service before any officer authorized to administer oaths. This proof of service shall, when filed with the papers in the suit, have the same effect as if it had been served upon the defendant by a person authorized to serve process. In addition, service of process may be accepted or waived by any party, upon voluntary execution of a notarized writing specifying an intent to accept or waive any particular process, or by a defendant by filing an answer in the suit. Such notarized writing may be provided in the clerk's office of any circuit court and may be signed by such party to the proceedings before any clerk or deputy clerk of any circuit court, under oath, or may be drafted and filed by counsel in the proceeding, and shall, when filed with the papers in the suit, have the same effect as if the process...