In the case of Arastoo Yazdani v. Soraya Sazegar, a published decision from the Virginia Court of Appeals, the judgement of the trial court was affirmed where husband did not clearly and unambiguously waive his right to appeal the issue of attorney fees in the separation agreement the parties entered into. And, further, the trial court's decision in awarding the wife attorneys fees was also affirmed.
Wife was visiting the United States on a tourist visa when she met husband on an online. After a brief courtship, the parties married. A year and a half later wife discovered husband was still receiving messages from the same dating service that husband used to meet wife. Wife confronted the husband who left the residence. Wife then filed for divorce on grounds of desertion in July 2020. Husband answered with a counterclaim, alleging in part that wife’s “cruelty and emotional abuse” justified his departure from the marital home.
Four months after these initial filings, wife could no longer afford legal counsel, so her attorney had to withdraw from representing her any further on the divorce. About eight months later, however, wife borrowed $18,000 from her daughter so she could again retain her prior lawyer to assist with preparations for trial set for November 2021. Upon being re-hired, wife’s counsel issued discovery requests including interrogatories and requests for production in August 2021. Husband responded to wife’s counsel on the day discovery
was due, writing “I understand that the date to respond to your Discovery Request is today” and “I will consult my attorney . . . to provide a response.” Wife, through counsel, provided husband another six days to comply with the discovery requests, but husband again failed to comply. Three days following the extended deadline, husband continued to claim that his attorney would contact
wife’s counsel soon. Wife’s counsel never heard from any attorney. Wife’s counsel then filed a motion for sanctions in September 2021, and husband—now represented by counsel—filed a flurry of motions in response seeking leave to amend his counterclaim, to continue the trial, and for an extension of time to respond to wife’s discovery requests. In particular, husband sought leave to amend his existing counterclaim to add an allegation that wife only sought to marry him to obtain a green card, calling the marriage a “green card sham.” He also suggested wife could be subject to criminal penalties for violating immigration law.
After a hearing on the pending motions, the court denied husband’s request for a continuance, granted the motion for leave to amend his counterclaim, issued an order to compel discovery responses from husband, and awarded wife $1,500 in attorney fees. The new allegations in the counterclaim led to depositions in October 2021, one month before trial. On the first day of trial (about a year and a half after the parties’ separation), wife presented her case-in-chief. Husband did not pursue cross-examination to bolster his allegations of “cruelty and emotional abuse” or his claims that wife entered the marriage for fraudulent purposes. At the close of day one, the court encouraged the parties to settle the matter. They reached consensus that night and formally signed the Agreement the next morning, presenting it to the court before the second day of trial was set to begin. The parties agreed to a no-fault divorce and settled all issues but attorney fees. The Agreement stated that “[t]he parties agree that they shall reserve the issue of Wife’s request for . . . attorney[] fees . . . for arguments to be heard by the Alexandria City Circuit Court.” Moreover, the parties “agree[d] to follow the ruling of the Court upon the Court making its determination regarding” attorney fees. The court asked the parties whether they wanted to proceed with the matter of attorney fees that day, or whether they needed more time. Wife’s counsel said she was ready to proceed. Husband’s counsel did not respond or make any objection. Wife then argued that husband had unnecessarily delayed settlement of the divorce, forcing
her to borrow money from her family to pay for legal fees. She also argued that husband had refused to respond to discovery requests, requiring the court to issue an order to compel, and still provided incomplete documentation of his finances even after that order.
Finally, she argued that husband’s annulment claim based on alleged “green card fraud”—added late in the proceedings and
ultimately retracted by husband—had been “deeply insulting” to wife. Husband responded that he lacked counsel when he was receiving discovery requests, claimed that he had requested mediation with wife, and argued that he had provided all financial
information to which he had reasonable access. He also argued that negotiation was a normal part of the litigation process and that he was not responsible for wife’s legal expenses because the court could not have granted a divorce until one year following separation anyway. After considering the parties’ arguments, the court awarded $33,948.64 in attorney fees to wife, finding that husband unnecessarily delayed settlement and resisted discovery. The court also noted that wife “can’t be faulted for not being willing to sit down and have a four-way conference or mediation” when husband had failed to produce necessary discovery such that she was not “in possession of documents pertaining to debt and assets to facilitate a successful meeting.” In sum, the judge stated that “efforts were made over and over again . . . to try and resolve this matter,” but husband “was so resistant [to settling] that . . . it required a motion to compel and sanctions to get him to finally produce some, but not all,” of the discovery wife had a right to receive.
Finally, the court deducted from the total fee award the fees expended before wife’s motion for pendente lite relief (filed at the same time as her original complaint) as well as its prior fee award from the hearing on the motion for sanctions.
Husband appealed the trial court's decision to award wife attorneys fees and the wife countered by arguing that husband
expressly waived any appeal of the attorney fee award in the Agreement.
Husband did not clearly and unambiguously waive his right to appeal. A party may waive by contract any right conferred by law or contract. Agreements between divorcing spouses are no exception. Waiver is the voluntary and intentional abandonment of a known legal right, advantage, or privilege. It flows naturally from the requirement that a waiver of a right be knowing, intelligent, and voluntary and that an agreement to waive a right must be clear and unambiguous. Here, the parties’ agreement contains no language expressly waiving a right to appeal the circuit court’s attorney fee award. 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.
As for the issue of attorneys fees, circuit courts have broad statutory authority to award attorney fees in a domestic relations matter. And in this case, the parties expressly agreed to submit the issue of attorney fees to the trial court. Marital property settlements entered into by competent parties upon valid consideration . . . are favored in the law and such will be enforced unless their illegality is clear and certain.
In deciding whether to award attorney fees in a divorce matter, a trial court may consider the unique equities of each case and may consider factors 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. The award must be reasonable “under all of the circumstances revealed by the record. The trial court has wide latitude in this context, and we reverse only for abuse of discretion.
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. 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. When a party unnecessarily prolongs litigation, it increases the amount of attorney fees the other party incurs and is a relevant factor for a trial court to consider in awarding attorney fees. For example, we have found that attorney fees were justified when a wife caused delay in litigation by failing to complete auction procedures (after requesting the family business be auctioned), failing to execute a deed until compelled to do so, being slow to respond to discovery, and failing to produce an accounting even after receiving several continuances.
None of husband's attempts to deflect blame for the protracted litigation on wife were valid. There was no evidence to suggest that the circuit court’s award of attorney fees was an abuse of discretion.