Home / Uncategorized / WOLDEMICHAEL v. ASFAHA (55963)


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DECEMBER 28, 1999

Record No. 1800-99-4




Present: Judges Elder, Bumgardner and Lemons



Dennis J. Smith, Judge

(Jahangir Ghobadi; Jahangir Ghobadi, P.C., on
brief), for appellant.

(Dennis M. Hottell; David Lawrence Ginsberg;
Dennis M. Hottell & Associates, P.C., on brief), for


Ghebru Woldemichael (husband) appeals the
decision of the circuit court affirming, ratifying and
incorporating a property settlement agreement allegedly entered
into by husband and Nigist Asfaha (wife) and deciding other
issues. On appeal, husband contends that the trial court erred
by: (1) affirming, ratifying and incorporating into its order of
May 19, 1999 the Property Settlement Agreement dated October 5,
1996; (2) denying his request for a continuance of the May 19,
1999 hearing; and (3) making its equitable distribution
determination and granting wife attorney’s fees. In her response,
wife seeks an award of appellate attorney’s fees. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.

"In reviewing an equitable distribution
award on appeal, we recognize that the trial court’s job is a
difficult one. Accordingly, we rely heavily on the discretion of
the trial judge in weighing the many considerations and
circumstances that are presented in each case." Artis v.
, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). The
judgment of a trial court sitting in equity, "when based
upon an ore tenus hearing, is entitled to great
weight and will not be disturbed on appeal unless plainly wrong
or without evidence to support it." Simmons v. Simmons,
1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986).

Property Settlement Agreement

Husband contends that the trial court erred
when it entered an order on May 19, 1999 affirming, ratifying,
and incorporating, but not merging, a property settlement
agreement signed by the parties on October 5, 1996. Husband
argues that the agreement was not valid and not final. We find no
merit in husband’s contention.

Husband did not refer to the agreement in his
bill of complaint filed July 1, 1997. In her answer, wife prayed
that the trial court affirm, ratify, and incorporate, but not
merge, the parties’ agreement signed on October 5, 1996, copies
of which were attached to her answer. Husband responded to wife’s
answer, stating that the "alleged property settlement
agreement was unofficial, unfair, incomplete and improper."
Wife did not refer to the agreement in her answer to husband’s
amended bill of complaint. The commissioner in chancery, who
heard evidence on the grounds for divorce, reported that the
"parties intend to request relief from this Court concerning
outstanding property issues, there was no signed Property
Settlement Agreement presented at this hearing."

The parties introduced evidence concerning the
agreement at the May 19, 1999 hearing. Wife produced a copy of
the agreement and a translation. Both parties testified, as did a
third witness who was the "chief mediator" at the time
the agreement was executed. Husband did not contest that he
drafted the agreement. Evidence indicated that the parties
willingly signed the agreement in the presence of the three
"mediation members." The document itself, as
translated, contained a listing of the parties’ property and
provided that the parties "agreed to share all the above
equally and not to claim anything else and both signed the
agreement." While husband alleged at the May 19, 1999
hearing that he refused to sign the final agreement several days
later, the evidence proved that the agreement signed by the
parties was a final agreement.

Based upon the written documents and the
testimony heard by the trial court ore tenus, the
court determined that the agreement was valid and enforceable.
"The language of Code ? 20-109.1 gives the trial court
discretion in determining whether a property settlement agreement
should be incorporated by reference into a final decree of
divorce. Absent an abuse of discretion, the trial court’s
decision must be upheld on appeal." Forrest v. Forrest,
3 Va. App. 236, 239, 349 S.E.2d 157, 159 (1986). Evidence
supported the trial court’s decision. We find no error in the
trial court’s determination.

Denial of Continuance

Husband also contends that the trial court
erred when it refused to grant his motion for a continuance made
at the May 19, 1999 hearing. In a Motion for Summary Judgment
previously filed with this Court, wife argues that this question
cannot be addressed without the transcript of the April 30, 1999
hearing. This transcript was not timely filed and is not a part
of the record on appeal. We find the record on appeal is adequate
for us to address husband’s contention on the merits and,
therefore, deny wife’s Motion for Summary Judgment.

We find no error in the trial court’s denial of
husband’s motion for a continuance. While we do not have the
transcript of the April 30, 1999 hearing before us, the record
demonstrates that, by order entered that day, the trial court
continued wife’s Motion to Incorporate Property Settlement
Agreement until May 19, 1999. The trial court ordered husband to
respond to wife’s motion by May 7, 1999. Husband signed this
order. The trial court also entered on April 30, 1999 a separate
order allowing husband’s counsel to withdraw and expressly
providing "[t]here will be no continuances of any court
dates set as of 4/30/99." Husband also signed this order
under the endorsement "Seen." In addition, as noted by
the court during the hearing on May 19, 1999, husband had notice
of wife’s reliance upon the agreement when she filed her answer
in 1997.

"Whether to grant or deny a continuance of
a trial is a matter that lies within the sound discretion of a
trial court, and its ruling will not be reversed on appeal unless
it is plainly wrong." Cardwell v. Commonwealth, 248
Va. 501, 508, 450 S.E.2d 146, 151 (1994). The record demonstrates
that husband was present at the hearing at which the trial court
continued the issue of the incorporation of the property
settlement agreement. Upon review of the record, we cannot say
that the trial court’s refusal to grant husband an additional
continuance on May 19, 1999 was an abuse of discretion.
Therefore, we find no merit in husband’s contention.

Equitable Distribution

Husband contends that the trial court erred by
entering an equitable distribution order pursuant to the terms of
the October 1996 agreement and by awarding wife her attorney’s
fees. We find no error. See Code ? 20-109.1.

Pursuant to the terms of the parties’
agreement, the trial court ruled that the former marital
residence was jointly held marital property that was to be
equally divided between the parties. Accordingly, the trial court
entered an equitable distribution order dividing the marital
property listed in the agreement and remaining in the marital
estate at the time of the hearing.

Husband contends that the trial court erred by
failing to consider his testimony concerning the value of the
marital residence. He testified that the house was listed for
sale at $549,000. Evidence established that the house did not
sell at that price and, in fact, that the sale price was reduced
to $525,000 by April 30, 1998. Wife testified that the marital
residence was worth between $480,000 and $500,000. She also
presented evidence that the 1997 tax assessed value of the home
was $435,530. Neither party presented a real estate appraisal for
the residence. The trial court’s determination that the marital
residence was worth $500,000 was supported by the evidence
presented. "We will not disturb the trial court’s finding of
the value of an asset unless the finding is plainly wrong or
unsupported by the evidence." Shooltz v. Shooltz, 27
Va. App. 264, 275, 498 S.E.2d 437, 442 (1998).

While husband also asserts that the trial court
erred by failing to determine the value of the marital residence
as of the time of the hearing, the record does not support this
contention. The trial court determined the current value of the
marital residence, limited by the scope of the evidence presented
by the parties.

We find no error in the trial court’s order
directing husband to reimburse wife for his share of the mortgage
payments made by wife since the execution of their agreement.
Under the terms of the agreement, the parties shared equally in
the loan for this property. Husband failed to cite any evidence
in the record supporting his contention that wife intentionally
failed to sell the marital residence. See Buchanan v.
, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
Husband contends that "equity and spirit of equal division
of assets and debts" reflected in the parties’ agreement
required wife to reimburse husband for mortgage and maintenance
attributable to unspecified property possessed by husband
following their separation. However, no other property remaining
in the marital estate at the time of the hearing was identified
in the parties’ agreement. Husband failed to present sufficient
evidence to warrant an award of these unspecified amounts
contrary to the express language of the parties’ agreement.

Husband failed to object to the award of
attorney’s fees to wife, either in the list of objections that
accompanied the endorsement of the June 9, 1999 order or in his
Motion For Reconsideration. "No ruling of the trial court .
. . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice."
Rule 5A:18. Neither good cause nor the ends of justice
warrant our consideration of this objection.

We deny wife’s request for attorney’s fees
incurred in this appeal. See O’Loughlin v. O’Loughlin,
23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

Accordingly, the decision of the circuit court
is summarily affirmed.




[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for