                        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.



     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)

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




                                 - 2 -
          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.

                                - 3 -
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

                               - 4 -
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,

                                - 5 -
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,

                               - 6 -
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:

                               - 7 -
            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


                                - 8 -
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

                                - 9 -
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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