Ghebru Woldemichael v. Nigist Asfaha

• Court: Court of Appeals of Virginia
• Decided: December 28, 1999
• Docket: 1800994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

GHEBRU WOLDEMICHAEL MEMORANDUM OPINION * v. Record No. 1800-99-4 PER CURIAM DECEMBER 28, 1999 NIGIST ASFAHA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 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 appellee.

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

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 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. Artis, 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,

- 2 - 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.

- 3 - 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

- 4 - 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

- 5 - 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).

- 6 - 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. Buchanan, 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.

- 7 - 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.

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