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 -