COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

LIDA SAEEDIAN 

 

v. Record No. 0476-00-4 

 

RICHARD M. MILLMAN MEMORANDUM OPINION*

 PER CURIAM 

LIDA SAEEDIAN AUGUST 15, 2000 

 

v. Record No. 0722-00-4 

 

RICHARD M. MILLMAN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Henry E. Hudson, Judge 

 (Jahangir Ghobadi; Jahangir Ghobadi, P.C., on 

briefs), for appellant. 

 (Lauren E. Shea; Sherman, Meehan, Curtin & 

Ain, P.C., on briefs), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 In Record No. 0476-00-4, Lida Saeedian (wife) appeals the 

decision of the circuit court granting a final decree of divorce 

to Richard M. Millman (husband). Specifically, wife contends 

that the trial court erred by (1) overruling her objections to 

the incorporation of the parties' Property Settlement Agreement 

(agreement) into the final decree on the grounds of 

non-disclosure, misrepresentation and fraud; (2) denying her 

motion to suspend and set aside the final decree; and (3) 
awarding husband $1,000 in attorney's fees as a sanction against 

wife. In Record No. 0722-00-4, wife contends that the trial 

court erred by (1) denying her petition for a rule to show cause 

seeking to enforce paragraph "a" of the parties' agreement; (2) 

modifying the final decree and the parties' agreement by placing 

$150,000 in an interest-bearing account established by the trial 

court without releasing the funds to wife; (3) modifying the 

final decree and the parties' agreement by ordering husband to 

pay certain payments to the account rather than directly to 

wife; and (4) abusing its discretionary authority by certain 

actions. Upon reviewing the record and briefs of the parties, 

we conclude that these appeals are without merit. Accordingly, 

we summarily affirm the decision of the trial court. See Rule 

5A:27. 

 "Under familiar principles, we view the evidence and all 

reasonable inferences in the light most favorable to the 

prevailing party below . . . ." Lutes v. Alexander, 14 Va. App. 

1075, 1077, 421 S.E.2d 857, 859 (1992). 

"The burden is on the party who alleges 

reversible error to show by the record that 

reversal is the remedy to which he is 

entitled." We are not the fact-finders and 

an appeal should not be resolved on the 

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basis of our supposition that one set of 

facts is more probable than another. 

Id. (citations omitted).1

Background

 The parties were married in 1992 and separated in June 1998 

when wife moved out of the marital home with her children from a 

previous marriage. The evidence proved that husband helped wife 

obtain custody of her children. Wife moved out of the marital 

bedroom in 1993. Husband provided the majority of the financial 

support for wife and the children throughout the marriage until 

the time of the separation. 

 Wife's first amended bill of complaint alleged constructive 

desertion by husband as of 1998. Subsequently, the bill of 

complaint was amended to allege no-fault grounds, which the 

commissioner in chancery found supported by the evidence. 

 The parties engaged in extensive discovery prior to the 

execution of the agreement. 

Record No. 0476-00-4

 Wife contends that the trial court erred by overruling her 

objections to entry of the final decree of divorce and the 

incorporated, but not merged, settlement agreement signed by the 

parties on November 16, 1999. For similar reasons, wife 

 1

 The transcript of the hearing held on January 21, 2000 was 

not timely filed and thus is not part of the record on appeal. 

See Rule 5A:8(a). Therefore, we do not consider it. 

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contends that the trial court erred by denying her motion to set 

aside the final decree of divorce. We find no error. 

 Wife alleged that husband committed intrinsic and extrinsic 

fraud in procuring the agreement. In her motion to set aside 

the final decree, she contended that, through non-disclosure, 

misrepresentation, and fraud, husband induced wife to sign the 

agreement. Wife alleged that husband failed to disclose his 

receipt of between seven and nine million dollars shortly after 

the agreement was signed. In his response to wife's motion, 

husband argued that he had fully disclosed all information to 

wife prior to the time the agreement was executed. 

 At the December 17, 1999 hearing, wife's new counsel 

admitted that he was relying on information told to him and that 

he was "in no position at this state . . . to get the chance to 

verify this fact." Because the case had been vigorously 

litigated for eighteen months, the trial court ruled that it 

would enter the final decree of divorce, but noted that wife's 

new counsel had twenty-one days to seek to set aside the decree. 

The trial court also warned counsel that it would award 

sanctions if wife's allegations were found to be 

unsubstantiated. 

 Subsequently, on January 21, 2000, the trial court 

conducted an ore tenus hearing on wife's motion to set aside the 

final decree. Following the hearing, the trial court ruled 

that, assuming arguendo there was merit in wife's underlying 

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allegations, the company stock on which wife's claim was based 

was husband's separate property and, therefore, was not 

available for equitable distribution. The court also found that 

any post-agreement payment received by husband was too 

speculative to be the basis of a spousal support award. 

 "'The charge of fraud is one easily made, and the burden is 

upon the party alleging it to establish its existence, not by 

doubtful and inconclusive evidence, but clearly and 

conclusively. Fraud cannot be presumed.'" Aviles v. Aviles, 14 

Va. App. 360, 366, 416 S.E.2d 716, 719 (1992) (citation 

omitted). The party alleging fraud "has the burden of proving 

'(1) a false representation, (2) of a material fact, (3) made 

intentionally and knowingly, (4) with intent to mislead, (5) 

reliance by the party misled, and (6) resulting damage to the 

party misled.' The fraud must be proved by clear and convincing 

evidence." Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 

S.E.2d 721, 723 (1991) (quoting Winn v. Aleda Constr. Co., 227 

Va. 304, 308, 315 S.E.2d 193, 195 (1984)). 

 In the record before us, the trial court did not determine 

whether there was evidence of misrepresentation or nondisclosure 

because it found that wife's allegations, even if supported by 

evidence, were not material, as they would affect neither 

equitable distribution nor spousal support. The record 

demonstrates that the parties engaged in extensive and 

substantial disclosure concerning husband's business interests, 

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including his involvement in Trans World Communications (TWC), 

and that husband disclosed to wife pertinent information as late 

as one month before the agreement was signed. Cf. Webb v. Webb, 

16 Va. App. 486, 431 S.E.2d 55 (1993) (setting aside property 

settlement agreement due to constructive fraud where husband, an 

attorney, drafted the agreement, discouraged wife from obtaining 

independent legal advice, and failed to disclose his pension). 

In answers in early November 1999 to supplemental 

interrogatories, wife indicated that she was aware of the 

pending liquidation of Leap Wireless International, noting that 

"[t]hey expect to liquidate Transworld assets. Number between 

$10-$20 million are mentioned." Moreover, wife's claim of 

nondisclosure and misrepresentation rests mainly on transactions 

that occurred after the parties executed their agreement. While 

wife purports to show misrepresentations and nondisclosure by 

husband prior to the time the agreement was executed, there is 

nothing to which she refers that is demonstrably a knowingly 

false representation by husband of a material fact. Thus, the 

evidence falls short of the clear and convincing standard 

necessary to prove fraud. Therefore, we find no error in the 

trial court's decision to overrule wife's objections to the 

final decree of divorce and to deny her motion to set aside the 

decree. 

 Wife also appeals the decision of the trial court to award 

husband $1,000 in attorney's fees. The order dated January 21, 

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2000 states that the fees are awarded "for the reasons stated in 

open court." The transcript of the January 21, 2000 hearing, 

however, was not timely filed and is not part of the record on 

appeal. It is clear from the record, however, including the 

transcript of the December 17, 1999 hearing, that the trial 

court cautioned wife that sanctions would be awarded if it found 

no merit to wife's motion. 

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. See Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award 

of counsel fees is reasonableness under all the circumstances. 

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). "In determining whether an award of attorney's fees is 

appropriate, the focus should be on the parties' bona fide claims 

and not on the parties' ability to predict in advance of trial the 

exact ruling of the court." Richardson v. Richardson, 30 Va. App. 

341, 352, 516 S.E.2d 726, 731 (1999). We find no abuse of 

discretion in the trial court's decision to award husband $1,000 

in attorney's fees. 

Record No. 0722-00-4

 In this appeal, wife contends that the trial court erred by 

ordering payment of the amounts due under the parties' agreement 

to an interest-bearing account established by the court. The 

trial court's order of March 6, 2000 provided, in pertinent part: 

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ADJUDGED, ORDERED and DECREED that the funds 

deposited by [husband] into the 

interest-bearing account established by this 

Court shall be released to [wife] if she 

does not prevail on her appeal(s), or any 

other avenues to attack, direct or 

collateral, relating to the Final Decree of 

Divorce entered on December 22, 1999, the 

Order dated January 20, 2000, the Order 

dated January 21, 2000, or any part thereof, 

and does not succeed in otherwise altering 

or setting aside said Final Decree of 

Divorce, the Order dated January 20, 2000, 

the Order dated January 21, 2000 or the 

parties' Agreement dated November 16, 1999, 

or any part thereof, and shall be released 

to [husband] if said Decree or Orders are 

vacated or set aside . . . . 

 We find no merit in wife's challenges to the action of the 

trial court in safeguarding the amounts due under the agreement 

that wife was seeking to set aside. She was advancing 

contradictory positions, seeking the benefits of the contract 

while simultaneously alleging that the contract was 

unenforceable due to fraud. "It is well established in Virginia 

that a litigant will be precluded from taking inconsistent and 

mutually contradictory positions." Dickson v. Dickson, 23 Va. 

App. 73, 80, 474 S.E.2d 165, 168 (1996) (citing Winslow, Inc. v. 

Scaife, 224 Va. 647, 653, 299 S.E.2d 354, 358 (1983), and Berry 

v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 795 (1983)). 

 We also find no merit in wife's contention that the trial 

court's actions impermissibly modified the provisions of the 

contract. The trial court's order addressed the enforcement of 

the agreement and was an appropriate means of protecting the 

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rights of both parties. That order in no way diminished the 

amount to which wife was entitled under the agreement, if she 

was unsuccessful in her attempts to set the agreement aside.

 Finally, we find no merit in wife's five alleged instances 

of abuse of discretion by the trial court. Contrary to wife's 

characterization, the trial court did not deny wife enforcement 

of the final decree in violation of Code § 20-109.1. The trial 

court's order protected wife's rights under the agreement, 

despite her inconsistent positions of seeking enforcement of the 

agreement that she also sought to set aside. 

 There is no evidence to support wife's claim that the trial 

court infringed on wife's right to appeal. On the contrary, the 

trial court expressed its recognition of her rights. 

 While wife claims that she was denied access to her 

property, the funds to which she asserted a claim were hers only 

pursuant to the terms of the contract which she sought to 

repudiate. 

 The trial court did not err by refusing to find husband in 

contempt. The record proves that husband made the spousal 

support payments required under the agreement, including the 

$5,000 payment towards wife's attorney's fees. In contrast, 

wife gave abundant notice that she repudiated the contract. It 

was not bad faith on the part of husband to withhold full 

performance of his unilateral obligations under the agreement in 

light of wife's challenges. It was clearly not an abuse of 

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discretion on the part of the trial court to ensure both parties 

would be safeguarded in the event the agreement was upheld on 

appeal. 

 We also find no abuse of discretion in the trial court's 

denial of attorney's fees to wife. At the last possible moment, 

wife sought to set aside an agreement reached following extensive 

negotiations and litigation, alleging unsubstantiated claims of 

fraud. Based upon the questionable good faith merit of wife's 

claims, we find no error in the trial court's denial of attorney's 

fees. See Richardson, 30 Va. App. at 352, 516 S.E.2d at 731. 

Appellate Attorney's Fees

 Upon husband's motions, we hold that he is entitled to 

attorney's fees for these appeals. Accordingly, we remand these 

cases to the trial court solely to award reasonable attorney's 

fees in favor of husband for these appeals. 

 For these reasons, we summarily affirm the decisions of the 

circuit court and remand for the limited purpose of awarding 

attorney's fees. 

 Affirmed and remanded. 

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