                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Senior Judge Annunziata


KOMAL ZAIDI MUSTAFA
                                                                MEMORANDUM OPINION *
v.     Record No. 2175-09-4                                         PER CURIAM
                                                                    APRIL 13, 2010
SHAHID S. MUSTAFA


                     FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                 Thomas D. Horne, Judge

                 (Kelly B. Gonzales; Potomac Legal Aid Society, Inc., on brief), for
                 appellant.

                 (Ian R.D. Williams; Harrison & Johnston, PLC, on brief), for
                 appellee.


       Komal Zaidi Mustafa (wife) appeals the trial court’s order granting Shahid S. Mustafa

(husband) an annulment. Wife argues that the trial court erred in finding that there was sufficient

evidence to prove the grounds for annulment based on fraud 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.

                                          BACKGROUND

       “When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

       So viewed, the evidence showed that in April 2007, husband traveled to Pakistan in search

of a wife. Husband was fifty-five years old at the time. He had been corresponding via e-mail and


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
telephone with two women. During his first week in Pakistan, he met with one woman and asked

her to marry him, but she declined. During his second week in Pakistan, he met with wife, who was

twenty-one years old and had a young daughter. They discussed marriage. He explained that he

was looking for “a nice young woman that [he] would have a nice sexual relationship.” He said that

she told him “no problem.” 1 After three days, husband and wife wed on April 18, 2007. Husband

stayed in Pakistan for two more days and then returned to the United States without wife and her

daughter. The parties did not consummate the marriage. 2 Wife told husband that she wanted to

wait until she was in husband’s house in the United States to consummate the marriage.

       In September 2007, husband returned to Pakistan for sixteen days. He stayed in wife’s

apartment, and again she refused to allow him to hold her hand, kiss her, or have sexual relations

with her.

       Husband remained in the United States until June 2008 when he returned to Pakistan.

Husband and wife went on their honeymoon during husband’s trip in June 2008. Wife brought her

daughter on the honeymoon. A friend, Mansur Aktar, also accompanied the couple on their

honeymoon, but stayed in a different room. 3 Wife continued to tell husband that she did not want to

consummate the marriage until she arrived in the United States.

       On September 16, 2008, wife and her daughter came to the United States. She and her

daughter slept in one room, while husband slept in another room. 4 Husband tried to make physical


       1
            Wife denied that they discussed sex before the marriage.
       2
          The parties’ testimony was in conflict. Wife testified that the parties had sexual
relations on the first night of their marriage and thereafter.
       3
        Aktar was the one who introduced husband to wife. Aktar was a witness at their
wedding ceremony, and he was the one who leased wife’s apartment to her.
       4
        There were a few occasions where the parties slept in the same room, but wife’s
daughter also slept with them. One of husband’s sons also lived in husband’s house. He
confirmed husband’s and wife’s sleeping arrangements.
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advances toward wife, but she refused. She said that she needed more time to get settled in the

United States. She told him that she needed three months, then six months, to become adjusted.

Husband took her to three therapists, but to no avail, because wife refused to have sexual relations

with him. Husband also discovered “personal e-mails” that wife wrote to Aktar after she arrived in

the United States.

       After wife arrived in the United States, she befriended husband’s ex-wife, Meena Mustafa

(Meena). Meena said that in October 2008, wife told Meena that she was not going to consummate

the marriage because she did not like husband and he was too old. Wife said that she married him

so that she could come to the United States for the benefit of her daughter.

       In November 2008, the parties separated. Since the parties’ marriage, the parties have never

consummated the marriage.

       Husband filed a complaint for annulment of marriage, to which wife filed an answer. On

July 31, 2009, after hearing the evidence and argument, the trial court ruled that husband met his

burden of proof and granted the annulment. The trial court entered the final decree on August 28,

2009. Wife filed a motion for reconsideration. On September 17, 2009, the trial court suspended

the judgment. On October 2, 2009, the trial court heard wife’s argument and denied her motion for

reconsideration. Wife timely noted her appeal.

                                             ANALYSIS

       Wife argues that the trial court erred in finding that the evidence was sufficient to prove

the grounds for annulment based on fraud by clear and convincing evidence.

       “We will not disturb the trial court’s decision where it is based on an ore tenus hearing,

unless it is ‘plainly wrong or without evidence in the record to support it.’” Furr v. Furr, 13

Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App.

601, 605, 383 S.E.2d 28, 30 (1989)). “‘In determining whether credible evidence exists, the

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appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its

own determination of the credibility of witnesses.’” Moreno v. Moreno, 24 Va. App. 190, 195,

480 S.E.2d 792, 795 (1997) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407

S.E.2d 32, 35 (1991)).

       “The party charging 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.” Bartrouny v. Bartrouny, 13 Va. App. 441, 443, 412 S.E.2d 721,

722 (1991) (quoting Winn v. Aleda Constr. Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984)).

See also Jacobs v. Jacobs, 184 Va. 281, 285, 35 S.E.2d 119, 120 (1945) (“where fraud is relied

upon the burden of proof is upon the one alleging it, and that if it is not strictly and clearly

proven as alleged, by circumstantial or direct evidence, no relief will be granted”).

       Husband alleged that wife committed fraud by entering into the marriage and having no

intention to consummate it. He contends that prior to the marriage, he told wife that he wanted a

wife with whom he would have sexual relations. She agreed. He relied on this assurance, and

they were married. However, once they were married, she refused to have sexual relations with

him. She later told Meena that she was not going to consummate the marriage and that she only

married husband in order to come to the United States for the benefit of her daughter. Husband’s

son also corroborated husband’s testimony. Husband’s son testified that husband and wife

showed no physical affection toward one another and that they often slept in different rooms. If

husband and wife slept in the same room, then wife’s daughter also slept with them.

       Wife argues that husband did not meet his burden because he did not prove wife’s

intention at the time of the marriage. “To justify an annulment of the marriage there must be

some clear evidence, circumstantial or direct, that the appellant did not intend before the

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marriage or at the time of the marriage to become in truth and fact the wife of the appellee.”

Jacobs, 184 Va. at 296, 35 S.E.2d at 125. The parties’ testimony is in conflict about whether

they consummated the marriage. Wife testified that they had sexual relations on their wedding

night. Husband testified that they never had sexual relations. He testified that she told him that

she wanted to wait until she arrived in the United States. Wife’s conduct corroborates husband’s

testimony. There was no evidence of any physical affection between the parties. When husband

and wife went on their honeymoon, wife’s daughter and Aktar went with the parties. Wife told

Meena that she never intended to consummate the marriage. Husband’s son testified that they

were not affectionate toward one another and often slept in different bedrooms.

         “It is well established that the trier of fact ascertains a witness’ credibility, determines the

weight to be given to their testimony, and has the discretion to accept or reject any of the

witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc).

         Here, the trial court found husband met his burden of proof and granted the annulment.

The trial court found that the testimony from husband’s son and Meena was “credible and

corroborative” of husband. The evidence supports the trial court’s ruling.

                                            CONCLUSION

         For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                              Affirmed.




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