                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Retired Judge Duff*


SIMINDOKHT JOUYBARI OKHRAVI
                                            MEMORANDUM OPINION **
v.           Record No. 2660-00-4                PER CURIAM
                                                MAY 1, 2001
MASOUD GANJI


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                   Robert W. Wooldridge, Jr., Judge

             (Fred M. Rejali, on brief), for appellant.

             (Jahangir Ghobadi, on brief), for appellee.


     Simindokht Okhravi (wife) appeals the dismissal of her bill

of complaint for annulment of her marriage to Masoud Ganji

(husband).    She contends the trial judge erred by finding that she

failed to prove grounds for annulment by clear and convincing

evidence.    Upon reviewing the record and briefs 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.

                                    I.

     On appeal, we view the evidence in the light most favorable

to the husband who prevailed at trial, and we grant to that


     * Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     **
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence all reasonable inferences.      See Anderson v. Anderson, 29

Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).     So viewed, the

evidence proved that prior to the marriage the wife, who lived in

Virginia, met the husband's sister through a mutual friend.     In

conversations with his sister and mother, the wife learned of the

husband, who was a doctor living in Iran.     They told the wife that

they wanted her to meet him and that he wanted to enter the United

States to complete his medical education.     The wife had numerous

telephone conversations with him and, in 1997, she made three

trips to Iran to meet him.    Prior to the second visit, the

husband's sister conveyed the husband's marriage proposal to the

wife.    The evidence proved that in Iranian culture families

arrange meetings of their relatives to encourage marriage.      On the

wife's third visit to Iran, she and the husband had a religious

ceremony.

        The husband came to the United States on December 1, 1997.

Two weeks later, the parties were married in a civil ceremony.

However, they separated on May 18, 1998.     On July 7, 1998, the

wife filed a bill of complaint seeking to annul the marriage.       She

alleged that the husband defrauded her into entering a sham

marriage and that his sole intent was to obtain permanent

residence status in the United States.

        After hearing the testimony and argument, the commissioner in

chancery found that the husband's "conduct and behavior radically

changed" the day after the marriage and that he "told [the wife]

                                 - 2 -
that he married her only to obtain his Green card."   The

commissioner also found, however, that the "parties continued to

live together for a period of approximately five (5) months

following [the husband's] statement of his purpose for the

marriage."   The commissioner further found that the wife wanted

the marriage to succeed and made many efforts to save the

marriage.    Although she eventually requested the husband to leave

their residence for a trial separation, within a week, she asked

him to return.   Their separation continued, however, because the

husband "attached an unacceptable condition for his return, which

she failed to meet."

     The commissioner found that husband "enjoyed the economic

benefit of receiving [wife's] complete support while studying for

his medical examinations in the U.S."   The commissioner also noted

that the husband testified that he sought comfort, companionship

and love from the relationship.   Finding that "it [wa]s not clear

that the only reason [the husband] married [the wife] was to get a

Green card," the commissioner concluded that the wife "failed to

prove fraud by clear and convincing evidence."   Moreover, finding

that the wife continued to cohabit with the husband after he

expressed his improper purpose, the commissioner recommended that

the wife's bill of complaint for annulment be dismissed.

     The trial judge overruled all but one of the wife's

exceptions to the commissioner's report.   He sustained her

exception to the commissioner's determination that she "suffered

                                - 3 -
no harm even if [the husband's] sole reason for marrying her was

to obtain his Green Card."    The trial judge explained, however,

that this sustained exception did "not affect the commissioner's

finding that [the wife] failed to prove fraud by clear and

convincing evidence."    The trial judge confirmed the remainder of

the report, including the commissioner's recommendation that the

bill of complaint for annulment be dismissed.   In the final

decree, the trial judge also denied husband's request for

attorney's fees.

                                 II.

     The principle is well established that "[o]n appeal, a decree

which approves a commissioner's report will be affirmed unless

plainly wrong."    Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292,

296 (1984).

          The commissioner's report is deemed to be
          prima facie correct. The commissioner has
          the authority to resolve conflicts in the
          evidence and to make factual findings. When
          the commissioner's findings are based upon
          ore tenus evidence, "due regard [must be
          given] to the commissioner's ability . . .
          to see, hear and evaluate the witness at
          first hand." Because of the presumption of
          correctness, the trial judge ordinarily must
          sustain the commissioner's report unless the
          trial judge concludes that it is not
          supported by the evidence.

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)

(citations omitted).

     In this case, the wife alleges fraud and "has the burden of

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

                                - 4 -
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) (citation omitted).

Nevertheless, even if fraud is proved, the annulment statute

provides as follows:

             No annulment for a marriage alleged to be
          void or voidable . . . by virtue of fraud or
          duress shall be decreed if it appears that
          the party applying for such annulment has
          cohabited with the other after knowledge of
          the facts giving rise to what otherwise
          would have been grounds for annulment
          . . . .

Code § 20-89.1(c).

     Evidence that the commissioner found convincing proved that

the husband "told [the wife] he only married her to obtain his

Green card."   The commissioner also found that the husband

sought and obtained comfort, companionship and support while

living with wife and studying for his medical examinations.    The

commissioner acknowledged the husband's testimony that he

entered the marriage for love and companionship.   Thus, the

trial judge affirmed the commissioner's finding that "it was not

clear that the only reason [the husband] married her was to

enable him to obtain a 'Green Card.'"   Upon our review of the

substantial amount of evidence in the record, we cannot say

those findings are plainly wrong.


                               - 5 -
     Moreover, even if the evidence had established fraud, the

evidence proved the wife chose to remain with the husband for

almost five months after husband made the statement of his

improper purpose.   By remaining with the husband for months

after learning of his improper purpose, the wife cannot now rely

on fraud to annul the marriage.     See Code § 20-89.1(c).

Therefore, the evidence supports the commissioner's findings and

recommendations, upon which the trial judge relied, that the wife

failed to present clear and convincing proof to annul the

marriage.   Accordingly, the trial judge did not err in confirming

the commissioner's findings and recommendation to dismiss the bill

of complaint.

                                 III.

     The husband seeks an award of his attorney's fees for this

appeal.   Upon our review of the record, we cannot say the appeal

was "frivolous or oppressive."     Commonwealth v. Haga, 18 Va.

App. 162, 167, 442 S.E.2d 424, 427 (1994).    Therefore, we deny

the husband's request for attorney's fees.

                                                             Affirmed.




                                 - 6 -
