Va. high court: Wife agreed to binding foreign decision

RICHMOND, VA — A husband who filed for divorce in Fairfax County Circuit Court and a wife who initiated parallel proceedings in Nepal both agreed to be bound by the Nepali court’s division of property, and the Court of Appeals upholds the trial court’s interpretation of the parties’ stipulation, which forecloses wife’s claims on appeal.

Wife’s earlier appeal does not foreclose the present appeal. Wife’s initial appeal in this matter was not a permissible interlocutory appeal because the Oct. 2 order did not adjudicate the principles of a cause. That order did not award a divorce, the chief object of the suit, nor did it decide the issue of child support. The appeal was premature and this court lacked subject matter jurisdiction to adjudicate the appeal. Dismissal of such an appeal did not bar wife from appealing later, upon entry of a final order. Wife’s appeal is properly before the court.

Wife preserved her arguments for review. Her trial memorandum in opposition to husband’s motion to dismiss raised the arguments she presses before this court. Wife’s counsel also presented oral argument and evidence in support of her position. The fact that those objections were not reiterated in a formal way upon entry of various orders is of no consequence.

Turning to the merits of the appeal, wife agreed to be bound by the decisions of the Nepali court. The parties disagree about the scope of the stipulation they made. Wife stresses isolated segments of the stipulation in support of her argument that the stipulation should be given a narrow reading. The trial court pointedly asked counsel that if the court in Nepal divided all of the property and made resolution of spousal support and child support, if that would be res judicata on the court according to the parties’ agreement. Counsel for both wife and husband answered in the affirmative.

Moreover, the parties agreed on Aug. 20, 2013, to stay the proceedings in Fairfax County Circuit Court pending a resolution of wife’s claims then pending before the court of Nepal. The pending claims included wife’s suit for division of marital property and her forgery claims filed before the circuit court stayed its equitable distribution proceedings.

Nepali court rulings

The record supports the circuit court’s conclusion that wife agreed to be bound by whatever issues were resolved to finality in Nepali courts, and to reserve jurisdiction in Fairfax for whatever issues remained unadjudicated. Wife was the one who initiated the litigation in Nepal, where she was represented by counsel. We affirm the circuit court decision that the parties’ stipulation precludes wife from relitigating the issues the Nepali court resolved.

The parties’ experts on Nepali law disagreed, but the circuit court found credible the testimony from husband’s expert that the Nepali court had in fact divided all of the parties’ assets. The evidence supports the circuit court’s conclusion that the Nepali court allocated all of the parties’ property, including property located in the U.S., and that the parties’ stipulation foreclosed her from relitigating the distribution of marital property in Fairfax County.

Whatever wife’s initial expectations might have been, the ultimate outcome of the Nepali litigation that she initiated could not possibly have come as a surprise.

The circuit court’s well-founded interpretation of the parties’ stipulation forecloses relitigation of wife’s claim that husband dissipated marital assets. Wife accused husband of forgery in the transfer of marital assets, but the Nepali court concluded wife failed to prove her case. Wife agreed by stipulation to be bound by the Nepali court’s decision.

Wife’s decision to pursue a property division in the Nepali court forecloses her claim for spousal support under Nepali law. The record indicates that the class of property available for distribution in Nepal is broader than what would have been available for distribution in Virginia, and the allocation of property is the means by which a divorced woman is to support herself.

Finally, we decline to apply the equitable doctrine of unclean hands here. Because the circuit court invoked unclean hands as a secondary ground for its decision, the doctrine’s applicability does not change our conclusion as to the stipulation’s preclusive effect.

Bajgain v. Bajgain (McCullough) No. 1127-14-4, March 17, 2015; Fairfax Cir.Ct. (Smith) Sequitta Banks for appellant; Amanda P. DeFede for appellee. VLW 015-7-069, 17 pp.

This article is by Deborah Elkins of Virginia Lawyers Weekly, a sister publication of Maryland Family Law Update.

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