The Court of Appeals of Virginia has upheld an award of attorneys’ fees to a woman in her divorce from a husband who delayed settlement and accused her of immigration fraud.
The husband said fees shouldn’t be awarded on various policy and procedural grounds, while the wife argued that he waived his right to appeal in the separation agreement.
The appellate panel disagreed with both parties.
“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 had incurred in defending this meritless appeal,” Judge Lisa M. Lorish wrote.
Lorish was joined by Judges Glen A. Huff and Stuart A. Raphael in Yazdani v. Sazegar (VLW 022-7-561).
Soraya Sazegar was visiting the U.S. on a tourist visa when she met Arastoo Yazdani via an online dating service. They married in November 2018. Eighteen months later, she found Yazdani back on the dating site and left him soon after a confrontation.
In July 2020, Sazegar filed for divorce on grounds of desertion. Yazdani counterclaimed that her “cruelty and emotional abuse” made him leave.
After four months, Sazegar’s attorney withdrew when she couldn’t pay him. Sazegar was able to borrow $18,000 from her daughter eight months later. Her attorney quickly sent discovery requests to Yazdani.
On the day his responses were due, Yazdani wrote that he would consult with his attorney to provide responses. After a six-day extension, Yazdani again failed to respond but said his attorney would contact them. That never happened, per the opinion.
In September 2021, Sazegar moved for sanctions. Yazdani retained counsel who then moved to amend his counterclaim, continue the November 2021 trial and extend their time to respond to Sazegar’s discovery requests.
Yazdani’s amendment claimed that Sazegar only sought to marry him to obtain a green card, calling the marriage a “green-card sham” and suggested she may be subject to prosecution.
The trial court allowed Yazdani to amend, but denied the continuance and compelled discovery responses from him.
Sazegar presented her case at trial, but Yazdani didn’t pursue cross-examination to bolster his allegations of cruelty and emotional abuse or immigration fraud.
After the trial judge encouraged the parties to settle, their attorneys presented a signed separation agreement the next morning.
The no-fault divorce agreement settled all issues but attorneys’ fees and stated that the parties “‘agreed to follow the ruling of the Court upon the Court making its determination regarding’ attorneys fees.”
When asked if the parties were ready to argue about the fees, Sazegar said she was; Yazdani’s attorney neither responded nor objected.
Sazegar argued that she was forced to borrow money because Yazdani unnecessarily delayed settlement and that, even after being compelled by the court, his discovery responses were incomplete.
Further, she asserted that Yazdani’s late annulment claim based on alleged “green card fraud” had been “deeply insulting.”
Yazdani said he didn’t have counsel when Sazegar served discovery and he produced all the records he could reasonably access. Claiming he requested mediation, he argued that he shouldn’t be responsible for his ex-wife’s fees because they had to wait a year after separation for a divorce.
The judge awarded Sazegar $33,948.64 in attorneys’ fees, noting that she “can’t be faulted” for not wanting to mediate when Yazdani failed to respond to discovery.
Lorish said there was no language in the parties’ agreement that specifically surrendered a right to appeal the lower court’s award of attorneys’ fees.
“Here, the parties’ agreement contains no language expressly waiving a right to appeal the circuit court’s attorney fee award,” Lorish continued. “Rather than stating, for example, that the circuit court’s determination would be non-appealable, the parties instead agreed to ‘reserve’ the issue of attorney fees for argument before the circuit court and to ‘follow the ruling’ of that court.”
While Sazegar maintained an appeal conflicts with an agreement to follow the ruling of the circuit court, “the general rule is that all final rulings of the circuit court are subject to change on appeal.”
“While husband did not waive the right to appeal the award of attorney fees in the marital property agreement, this fact alone does not shield him from the consequences of filing a meritless appeal. We award attorney fees here because all of husband’s arguments are either waived or without merit. Put simply, no ‘reasonable construction of the record or the governing legal principles’ could support them.”
— Judge Junius P. Fulton III
The judge said an “agreement to ‘follow the ruling’ of a lower court is at the very least ambiguous as to whether the parties agreed to follow the ruling of the circuit court assuming that order was affirmed on appeal or to follow the ruling with no further right of appeal. This ambiguous phrase fails to show husband clearly and unequivocally waived his right to appeal.”
Trial courts “may consider the ‘unique equities of each case,’ … including ‘ability to pay a fee, the party’s degree of fault in bringing about the dissolution of the marriage, and whether the party unnecessarily increased litigation costs through unjustified conduct” when deciding whether to grant attorneys’ fees.
“Here, the trial court awarded fees because of the delay in litigation husband caused by resisting discovery, forcing wife to move to compel, and then providing only some of the required documents in response to the court’s order to compel,” Lorish pointed out. “The court noted that wife made repeated efforts to resolve the matter through counsel, then after she could no longer afford an attorney, by acting pro se. And the record shows that husband’s decision late in the litigation to seek annulment alleging that the marriage was fraudulent — a claim he eventually dropped — required additional costly depositions.”
Finding all of Yazdani’s arguments lacking, the court awarded Sazegar her appellate fees.
“While husband did not waive the right to appeal the award of attorney fees in the marital property agreement, this fact alone does not shield him from the consequences of filing a meritless appeal,” Lorish explained. “We award attorney fees here because all of husband’s arguments are either waived or without merit. Put simply, no ‘reasonable construction of the record or the governing legal principles’ could support them.”
The matter returns to the circuit court to determine the amount of reasonable attorneys’ fees for Sazegar.