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I am guessing they skipped Thanksgiving this year . . .

by | Nov 30, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The sole published opinion from the Court of Appeals today is from cross-appeals in a dissolution of marriage case.  I am guess that the parties in John Stark v. Firouzeh Dinarany did not share Thanksgiving dinner last week.  Stark objected to the circuit court’s admission of a post-nuptial agreement into evidence and its equitable distribution, while Dinarany objected to court’s rulings on support, equitable distribution and attorney’s fees (there was also an issue of child support with she “conceded” along with two other of her eight assignments of error — a word about this can be found at the end of the post).  All in all, a fairly garden-variety divorce appeal with a perhaps slightly less than run of the mill set of facts.

Let’s start with the marriage, which lasted some less than a decade and produced one child (Dinarany had a child from a previously relationship).  At the time of the marriage Stark was a member of the US Army (the opinion does specify whether he was enlisted or an officer) and four years into the marriage with 25 years in, he retired and took a diplomatic post with the State Department.  If you know about military service pensions, you know that with 20 years, a service member can retire and begin receiving benefits immediately even if employed in another area of government.

After the couple separated in 2019, Dinarany continued to reside in the marital home with the children and “cancelled” a prospective lease. Stark continued to pay the mortgage on the home until he placed it in a forbearance program.

Now the introduction mentioned a post-nuptial agreement, but the couple also have a pre-nup which had a “no alimony” provision.  The post-nuptial agreement was executed four years into the marriage which purported to “nullify” the pre-nup.  Interestingly, neither party referred to either document in their initial pleading.

Stark, who filed for divorce on the grounds of dissertation, would subsequently produce the pre-nup in discovery asserting as the basis for denying Dinarany spousal support. Although Dinarany would subsequently maintain that she produced the post-nup which her attorney maintained was sent to opposing counsel, opposing counsel denied any knowledge of the post-nup.

At trail, Stark, or rather his counsel, did a peculiar thing.  After testifying about the pre-nup, and only the pre-nup, he moved to have both agreements received by the trial court.  The court, perhaps as perplexed by this turn of events as your reporter, indicated that it was his understanding that the parties were disputing the enforceability of the post-nup.  Stark’s counsel, however, stated that he had no problem with the post-nup being admitted to evidence and then acknowledged that her client knew the agreement existed and “we’re not objecting to that”,” noting only that it was “produced after the [discovery] deadline.”  Those statements are quite an about face (military allusion intended) from the pre-trial stance.

Thus, the issue became not whether there was a post-nup, but whether it was effective to “nullify” the pre-nup.  I won’t bore you with the details because, as mentioned in the introduction, Stark only challenged the admission of the post-nup, not the court’s ruling on its application.  However, I will commend to the reader to page six of the opinion for a quote from Stark’s counsel responding to a question from the bench about where her client resided (a factor in determining whether the post-nup was effective) — because, while it was a perfectly proper response from the perspective of avoiding a possible disadvantage for her client, I seriously doubt that it endeared her to the trial court because the subtext of the answer was “Judge, mind your own bee’s wax.”

In any event, the court found the post-nup was enforceable and so awarded support to Dinarany as well making other rulings with respect to the marital property for equitable distribution.  However, the court did not award any portion of Stark pension to Dinarany.

Stark’s assignment of error challenged the admission of the post-nup on two grounds.  First, he contended that it should have been excluded because it was produced after the discovery deadline.  If you were paying even moderately distracted attention to the recitation of how the post-nup was admitted, you know that this argument went over with the Court like a lead balloon.  In fact, the Court found quite a few reasons why the court’s admission of the post-nup was perfectly proper — but the most interesting reason had nothing to do with the fact that Stark was objecting to the court having received into evidence that he had proffered and which his counsel practically begged the court to accept.  No, it was a different peculiar fact — one that you might have missed, so let me repeat it — “neither party referred to either document in their initial pleading.”

Why is that important?  Well, because even though Virginia is a “notice pleading state” it is also “firmly established that no court can base its judgment or decree upon facts not alleged or upon a right which has not been pleaded and claimed.”  In short, the first reason Stark could not complain about the post-nup nullifying the pre-nup is he never told the court he was going to rely on the pre-nup to wiggle out of paying support.

While the Court goes on to acknowledge that even if Stark could have relied upon the pre-nup (for example, if Dinarany had introduced it or conceded its application), he was the one that introduced the post-nup and then (through hos counsel) decided to play cutesy in responding to the court’s question about his current residence.

Dinarany’s appeal is much more of the garden variety that the initial impression of the case would have led one to believe.  With respect to equitable distribution, which both parties beefed about, the determination of which is committed to the trial court’s discretion, the Court leave the judgment undisturbed.  This is a sound decision under the principle that if both parties are unhappy with the result, the court got it right.  The same result applies to Dinarany’s complaints about the amount of support and an award of attorney’s fees as a sanction for the late discovery.

There was one small victory for Dinarany, however, with respect to the court’s failure to award her a portion of Stark’s military pension.  Here’s the thing about defined benefit pensions — if any portion of the pension was earned during the marriage, then some portion of the pension benefit is marital property and must be included in the equitable distribution.  Since the evidence clearly established that some portion of the pension was earned during the marriage, Dinarany is entitled to some portion of that portion — so the court was plainly wrong in denying her any portion.  The question is, how much?

Now with most pensions, especially those that are not yet being paid out, this can be a complex issue.  However, on remand the trial court is going to have some help from the US Code, which has a neat little section all about figuring out how to divvy up a military pension.  While there are a number of factors that can be asserted the change the basic calculation, no court has ever gone wrong by following the presumptive formula found in the Code and I am willing to bet that the court in this case will follow that formula to the letter.

Now, as promised, a word about Dinarany’s counsel “conceding” 3 of the eight assignments of error.  I will be quite frank and say that I was confused by the court’s footnote at the beginning of the opinion saying that Dinarany had “conceded” her assignment of error on child support.  Why would one assign error to some aspect of the judgment only to “concede” it on brief.  Occasionally one will have to concede a point at oral argument where, for example, there has been an intervening decision rendering the point moot.  But why would you assign error only to immediately concede the point?

Well, it turns out that Dinarany was on her (at least) third counsel who took over from the original appellate counsel who took over from trial counsel.  This is revealed in a subsequent footnote explaining why two of the assignments of error relating to equitable distribution were also “conceded” because the first appellate counsel hadn’t noted that the issues were not preserved by the trial counsel.  Now I am going to have to make a leap here, because that was the extent of the information in the footnote — i.e. that the counsel conceding the assignments of error was not the one who had raised it — but there is only one way in which the first counsel could have “raised” the assignments of error in an appeal of right, but not written the opening brief in which their lack of preservation was conceded. Rule 5A:25 requires the parties to attempt to agree on the content of the appendix — but if they can’t — then when designating the appendix separately, they must file with the clerk of the Court of Appeals a statement of the assignments of error.

Given the animosity of the parties and the fact that there were cross-appeals, there’s a more than fair chance that the parties did not agree on the appendix and Dinarany’s counsel filed the required notice with eight assignments of error.  It would be more speculative to wonder if Dinarany fired this attorney when it was discovered that three of them were not preserved — but for whatever reason the new appellate counsel was probably wise to concede these points rather than attempt to make an ends of justice argument.