Bindu Bajgain v. Devendra Bajgain

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and McCullough

PUBLISHED

Argued at Alexandria, Virginia

BINDU BAJGAIN

OPINION BY

v. Record No. 1127-14-4 JUDGE STEPHEN R. McCULLOUGH

MARCH 17, 2015

DEVENDRA BAJGAIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Robert J. Smith, Judge1

Sequitta Banks (B&B Law Group, PLC, on briefs), for appellant.

Amanda P. DeFede (McIntyre DeFede Law PLLC, on brief), for

appellee.

Bindu Bajgain, wife, appeals from several rulings of the Fairfax County Circuit Court in

connection with her divorce from her husband, Devendra Bajgain. While their divorce suit was

pending in Fairfax County, wife initiated parallel proceedings in Nepal for divorce and for the

distribution of marital assets. This appeal turns on the meaning of a stipulation the parties made

concerning the proceedings in Nepal. For the reasons detailed below, we affirm the judgment of

the circuit court.

BACKGROUND

On appeal, we view the evidence in the light most favorable to husband, the prevailing

party below, and grant him “all reasonable inferences fairly deducible therefrom.” Anderson v.

Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).

1

Judge Smith signed the final decree of divorce. Judge David S. Schell entered the

orders at issue, including the October 2, 2013 order.

Husband and wife are originally from Nepal. On April 20, 2011, husband filed for

divorce in Fairfax County Circuit Court. Wife filed an answer and a cross-complaint, in which

she sought, among other things, the determination of separate and marital property, the valuation

of real and personal property, the equitable distribution of marital property, and spousal support.

On June 10, 2011, the circuit court entered a pendente lite consent order, awarding wife $1,500

spousal support per month. The court scheduled an equitable distribution hearing for April 11,

2012.

Wife then initiated several legal proceedings in the Morang District Court, in Nepal. On

August 30, 2011, wife filed for the division of marital property. About eight months later, on

April 8, 2012, she filed for divorce. Under Nepali law, divorce is a separate legal action from the

division of the parties’ marital property.2 Wife did not request child support in Nepal. Sometime

before August 20, 2012, wife also filed three separate claims alleging that husband had engaged

in forgery. Wife alleged husband fraudulently transferred marital funds to his relatives.3 These

transfers were all made shortly before, or shortly after, husband filed for divorce in Fairfax

County. Husband argued that he transferred the funds in repayment of loans. The Morang

District Court ultimately dismissed wife’s forgery claims, finding insufficient evidence of fraud.

On May 25, 2012, husband, citing the proceedings in Nepal, filed a motion in Fairfax

County Circuit Court to stay the equitable distribution proceeding and to modify the pendente

lite support. On August 20, 2012, the parties reached a stipulation concerning the effect of the

2

The Morang District Court awarded wife a divorce, which she then appealed. The

appellate court in Nepal vacated the divorce. On April 1, 2013, wife ultimately withdrew her

request for divorce from the Morang District Court.

3

The record is not clear precisely when wife filed these forgery claims, but she admitted

they were filed before the circuit court stayed the equitable distribution proceeding on August

20, 2012.

-2-

proceedings in Nepal on the ongoing litigation in Fairfax County. Before reading the

stipulation, the circuit court stated, “I am going to ask the parties to listen very carefully to what

the attorneys say. If there is anything they say that is not in accord with their agreement, they

should contact either counsel or associate counsel to let them know immediately upon mistake.”

Counsel for wife then read the following stipulation into the record:

This matter is stayed, pending a resolution of Ms. Bajgain’s

claims now pending before the Court of Nepal. After these matters

are adjudicated or dismissed, the parties stipulate the court’s

power, authority and jurisdiction is hereby reserved and retained to

adjudicate either party’s claims for equitable distribution pursuant

to 20-107.3, and/or spousal support pursuant to 20-107.1, or any

other related matters with regard to equitable distribution, spousal

support or child support.

Now, either party retains their rights to argue such legal or

equitable claims they may have in any further hearing, but the

power and authority and jurisdiction of this court to adjudicate

equitable distribution and spousal support is specifically retained.

Now, for example, with regard to the issues of res judicata,

if Ms. Bajgain brings a divorce decree from Nepal that totally

adjudicates a divorce, then there is no res judicata argument as to

equitable distribution, spousal support or child support.

However, if the courts of Nepal adjudicate the ownership of

certain property in Nepal, then this court wouldn’t relitigate those

claims. Now, like for example, if they adjudicate a piece of

property is divided in a certain way, this court would not re-

adjudicate that.

The court further inquired, “If the court in Nepal divides all of the property and makes

resolution of spousal support and child support, is that res judicata on this court, according to

your agreement?” Husband’s counsel responded, “Your Honor, it hypothetically is, given

[wife’s counsel’s] hypothetical and the application of res judicata, which is simply that it was

fully litigated in another jurisdiction to a Final Order. So there would be nothing left for this

court to be determined.” Wife’s counsel added that, “[i]f the court in Nepal adjudicates the

property case and sets forth orders regarding certain pieces of property, then those pieces of

-3-

property would not be re-litigated in this court.” On August 20, 2012, the court entered an order

incorporating the parties’ agreement by reference. Nine months later, on May 7, 2013, the

Morang District Court issued a final order dividing the parties’ property.

On August 12, 2013, husband filed a motion in Fairfax County, to dismiss wife’s claim

for equitable distribution and also to request sanctions. He argued that, based on the Nepali

court’s apportionment of marital property and the parties’ stipulation concerning the preclusive

effect of the proceedings in Nepal, the circuit court no longer had jurisdiction over equitable

distribution. Wife argued that dismissal was inappropriate because she sought only division of

real property located in Nepal and had not asked for spousal support. Each party also argued that

the other had impermissibly come into equity with unclean hands.

On August 15, 2013, the court heard argument and testimony concerning husband’s

motion to dismiss and for sanctions. Husband offered testimony from Khagendra Gherti

Chhetry, a New York attorney also licensed to practice in Nepal. He explained that Nepali law is

based on statutory enactments and on the common law of England. Regarding wife’s forgery

claims, he noted that the Nepali court considered evidence from fourteen witnesses and argument

from both parties’ counsel before concluding that wife had not proven her case.

Regarding the distribution of marital property, Chhetry testified that the Morang District

Court “considered considerably all of the assets of the parties including what they have here [in

the United States], and they have made a decision accordingly.” He explained that, under Nepali

law, a spouse can continue to receive spousal support so long as she does not take any property

distribution. Once she takes her share of the property, however, spousal support ends. Here,

wife took property. Furthermore, under the law of Nepal, the court distributed property that was

given to husband by his relatives, including gifts given before the marriage. The Nepali court

also awarded wife property husband had received by inheritance. Husband’s pension, however,

-4-

was treated as his separate property, and it was not subject to distribution. Chhetry testified that

the Nepali court “decided everything except the child support.”

Wife’s expert, a licensed Nepali attorney and part-time professor, testified that, in a

domestic proceeding referred to as coparency, a court awards property to the husband and wife

as well as to the children. Wife would receive one fourth of husband’s property, and each of the

Bajgains’ two sons would receive one fourth. According to wife’s expert, the Nepali court did

not divide any property located in the United States.

The circuit court announced its decision on August 16, 2013. First, the court found “that

the decisions of the court in Nepal would be honored by the parties . . . certainly as to all

property.” The court explained that Nepal’s property distribution laws operate differently from

Virginia’s. Wife received twenty-five percent of the marital estate. The marital estate, however,

included property that is generally considered separate in Virginia. For example, the marital

estate included gifted and inherited property. On the other hand, Nepali law considers husband’s

pension to be his separate property, and it was not subject to division. Also, wife’s decision to

seek property distribution in Nepal precluded her from receiving spousal support. The circuit

court found that “the proceedings in Nepal were fair and the wife was given an opportunity to be

fully heard and present evidence and present witnesses.”

On October 2, 2013, the court entered an order memorializing its decision, which

incorporated by reference a transcript of the ruling announced from the bench August 16, 2013.

The court held that wife was barred from requesting spousal support and equitable distribution

and that the Morang District Court’s order dated May 7, 2013, should be given “[f]ull faith and

credit.” The court further held that, “[u]nder the principles of res judicata and unclean hands

[wife’s] request for relief under the cross-complaint for spousal support and equitable

distribution of property, including waste, are barred because they have been fully litigated by a

-5-

Court of competent jurisdiction.” The parties submitted an agreed upon disposition for child

support, which the court entered on October 4, 2013.

On October 21, 2013, wife filed a notice of appeal with this Court.4 On December 27,

2013, wife informed this Court, by letter, of her desire to withdraw the appeal. According to

wife, on January 29, 2014, she delivered a motion to withdraw her appeal. On February 4, 2014,

husband filed a motion to dismiss the appeal, with prejudice, for wife’s failure to timely file

transcripts. On February 21, 2014, this Court dismissed the appeal, Bajgain v. Bajgain, No.

2023-13-4, for failure to timely file the notice of appeal with the circuit court.5 The order did not

specify whether the dismissal was with or without prejudice.

On May 28, 2014, the circuit court entered a final decree of divorce. The present appeal

followed.

ANALYSIS

I. THE APPEAL IS PROPERLY BEFORE US.

As a threshold matter, husband argues that we must dismiss the appeal for two reasons:

first, because our dismissal of wife’s previous appeal bars the present appeal and, second,

because wife’s written objections to the October 2, 2013 order are insufficient to preserve the

issues she raises on appeal.

A. Wife’s first appeal does not foreclose the present appeal.

This Court is a court of limited jurisdiction. “Absent subject matter jurisdiction, this

Court cannot address and resolve the merits of a claim on appeal.” Chaplain v. Chaplain, 54

4

We may take judicial notice of our records. Wright v. Commonwealth, 53 Va. App.

266, 281, 670 S.E.2d 772, 779 (2009).

5

Our records do not reflect any notice of appeal filed with the circuit court in connection

with wife’s first appeal. See Rule 5A:6 (notice of appeal must be filed with the “clerk of the trial

court”).

-6-

Va. App. 762, 767, 682 S.E.2d 108, 110 (2009). Ordinarily, the entry of a final order is a

necessary prerequisite for this Court to resolve the merits of an appeal. See Code

§ 17.1-405(3)(b), (c), (d) (“Any aggrieved party may appeal to the Court of Appeals from . . .

[a]ny final judgment, order, or decree of a circuit court involving . . . [d]ivorce; . . . [c]ustody; . . .

[s]pousal or child support; . . . .”). Code § 17.1-405(4)(ii), however, authorizes parties to appeal

an “interlocutory decree or order” when the order has “adjudicat[ed] the principles of a cause.”

The order dated October 2, 2013, indisputably, was not a final order. Husband argues, however,

that this order was an appealable interlocutory order that “adjudicated the principles of the

cause” and, consequently, our dismissal of the appeal was on the merits. We disagree.

“[I]nterlocutory appeals often result in inefficiency and unnecessary delay and expense.”

de Haan v. de Haan, 54 Va. App. 428, 441, 680 S.E.2d 297, 304 (2009). In light of these

considerations, we have recognized that “[s]ignificant policy interests counsel against frequent

interlocutory appeals and, therefore, finding an order adjudicates ‘the principles of a cause.’” Id.

at 440, 680 S.E.2d at 303. For an order to “adjudicate the principles of a cause” it must

determine that “the rules or methods which the rights of the parties

are to be finally worked out have been so far determined that it is

only necessary to apply those rules or methods to the facts of the

case in order to ascertain the relative rights of the parties, with

regard to the subject matter of the suit.”

Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991) (quoting Lee v. Lee, 142

Va. 244, 252-53, 128 S.E. 524, 527 (1925)). The interlocutory order must address “the chief

object[s] of the suit.” Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 713 (1994)

(citation and internal quotation marks omitted). “Typically, [in divorce matters,] such goals

include obtaining a divorce, determining custody of children, deciding whether to grant child or

spousal support, and resolving equitable distribution.” de Haan, 54 Va. App. at 439, 680 S.E.2d

at 303.

-7-

Virginia’s appellate courts have previously considered whether an order in a divorce suit

is one that “adjudicates the principles of a cause.” See, e.g., Lewis v. Lewis, 271 Va. 520,

527-28, 628 S.E.2d 314, 318 (2006) (order dismissing husband’s cross-bill for annulment did not

adjudicate the principles of a cause when wife’s divorce complaint seeking divorce and equitable

distribution was still pending); Webb v. Webb, 13 Va. App. 681, 682-83, 414 S.E.2d 612, 613

(1992) (interlocutory order finding a separation agreement invalid was not appealable because

“[t]he matter was still in the breast of the court and subject to alteration and amendment by the

judge before entering an appealable order” and the court still had to address the remaining issues,

including the grounds for divorce and equitable distribution (alteration in original) (citations and

internal quotation marks omitted)); Erikson, 19 Va. App. at 391, 451 S.E.2d at 713 (decree

upholding the validity of the marriage did not adjudicate the principles of a cause because the

ruling did not determine whether a divorce would be granted or on what grounds). But see

Chaplain, 54 Va. App. at 768-69, 682 S.E.2d at 111 (order upholding a premarital agreement

adjudicated the principles of a cause when the parties stipulated that the grounds for divorce

were not contested and the sole issue to be decided by the circuit court was the validity of the

premarital agreement).

Wife’s initial appeal in this matter was not a permissible interlocutory appeal because the

October 2, 2013 order did not “adjudicate the principles of a cause.” That order did not award a

divorce, the chief object of the suit, nor did it decide the issue of child support. Wife’s appeal

was premature: the order appealed from was neither a final order nor did it adjudicate the

principles of a cause. Accordingly, this Court lacked subject matter jurisdiction to adjudicate the

appeal. Lewis, 271 Va. at 528, 628 S.E.2d at 319. Dismissal of such an appeal was without

prejudice and did not bar wife from appealing later, upon entry of a final order. Id. at 528 n.5,

-8-

628 S.E.2d at 319 n.5; see also Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342. That is what

wife did. The present appeal is properly before us.

B. Wife preserved her arguments for appellate review.

Wife’s counsel endorsed the final decree of divorce with the following notation:

SEEN AND objected to on the grounds that the decree

incorporates the October 2, 2013, order which was issued contrary

to law. Defendant requested that the appeal be withdrawn on

December 27, 2013, prior to the Court’s dismissal without

prejudice on February 21, 2014.

Husband argues that wife’s failure to note an objection on the October 2, 2013 order, and the

objection she did note on the final divorce decree, are inadequate to preserve her assignments of

error. According to husband, wife failed to contemporaneously object to the circuit court’s order

as required by Rule 5A:18. He adds that wife failed to provide “a clear and exact reference to

the page(s) of the transcript, written statement, record, or appendix where each assignment of

error was preserved in the trial court.” Rule 5A:20(c). Wife does direct us, in great detail, to the

places where she preserved her arguments below. Husband argues, however, that these

objections did not occur “at the time of the court’s oral ruling on August 16, 2013 or any date

thereafter.”

Husband’s arguments are without merit. First, wife’s trial memorandum in opposition to

husband’s motion to dismiss raised the arguments she presses before this Court. Wife’s counsel

also presented oral argument and evidence in support of her position. The fact that those

objections were not reiterated in a formal way upon entry of various orders is of no consequence.

Under Code § 8.01–384(A),

No party shall be deemed to have agreed to, or acquiesced in, any

written order of a trial court so as to forfeit his right to contest such

order on appeal except by express written agreement in his

endorsement of the order. Arguments made at trial via written

pleading, memorandum, recital of objections in a final order, oral

argument reduced to transcript, or agreed written statements of

-9-

facts shall, unless expressly withdrawn or waived, be deemed

preserved therein for assertion on appeal.

The Supreme Court of Virginia has repeatedly held that,

once a litigant informs the circuit court of his or her legal

argument, [i]n order for a waiver to occur within the meaning of

Code § 8.01-384(A), the record must affirmatively show that the

party who has asserted an objection has abandoned the objection or

has demonstrated by his conduct the intent to abandon that

objection.

Kellermann v. McDonough, 278 Va. 478, 491, 684 S.E.2d 786, 792 (2009) (alteration in

original) (internal quotation marks omitted) (quoting Helms v. Manspile, 277 Va. 1, 6, 671

S.E.2d 127, 129 (2009)). The Supreme Court reiterated those principles most recently in

Cashion v. Smith, 286 Va. 327, 333-34, 749 S.E.2d 526, 529-30 (2013).

We have construed Rule 5A:18 according to its purposes, namely, “to alert the trial judge

to possible error so that he or she may consider the matter and take corrective action necessary to

avoid unnecessary appeals, reversals and mistrials.” Martin v. Commonwealth, 13 Va. App. 524,

534, 414 S.E.2d 401, 406 (1992) (en banc). “In addition, a specific, contemporaneous objection

gives the opposing party the opportunity to meet the objection at that stage of the proceeding.”

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Wife’s written and oral

arguments satisfied Rule 5A:18.

Wife’s arguments are not procedurally defaulted. Accordingly, we proceed to address the

merits of her contentions.

II. WIFE AGREED TO BE BOUND BY THE DECISIONS OF THE NEPALI COURT.

A. Wife’s narrow reading of the parties’ stipulation must be rejected.

Wife contends in her second assignment of error that the circuit court erred in finding that

she agreed to be bound by the decisions of the court in Nepal. According to her, the parties

stipulated that the circuit court’s power, authority, and jurisdiction were reserved and retained to

- 10 -

adjudicate equitable distribution under Code § 20-107.3, spousal support under Code § 20-107.1,

or any other related matters with regard to equitable distribution, spousal support, or child

support.

As a general proposition, Virginia courts look “with favor upon the use of stipulations . . .

which are designed to narrow the issues and expedite the trial or settlement of litigation.”

McLaughlin v. Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970).6 Here, the parties

disagree about the scope of the stipulation they made. Because the stipulation was the subject of

a court order, the court was, in effect, construing the scope of its own order. We “give deference

to the interpretation adopted by the lower court” of its own order. Rusty’s Welding Serv., Inc. v.

Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc). That interpretation,

however, must be reasonable, and we will “apply an abuse of discretion standard.” Roe v.

Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 528 (2006).

Wife stresses isolated segments of the stipulation in support of her argument that the

stipulation should be given a narrow reading. For example, she points to the following: “[T]he

parties stipulate the court’s power, authority and jurisdiction is hereby reserved and retained to

adjudicate either party’s claims for equitable distribution pursuant to 20-107.3, and/or spousal

support pursuant to 20-107.1.” The remainder of the stipulation clarifies, however, that if the

Nepali court were to divide the marital property, its decision would be binding. The court

pointedly asked counsel, “If the court in Nepal divides all of the property and makes resolution

of spousal support and child support, is that res judicata on this court, according to your

agreement?” (Emphasis added.) Counsel for both wife and husband answered in the affirmative.

6

Although their stipulation was not written or signed, as contemplated by Code

§ 20-109(C), it remained binding on the parties once the circuit court accepted it and

incorporated it by reference in a court order they and their counsel endorsed.

- 11 -

Husband’s counsel responded, “Your Honor, it hypothetically is, given [wife’s counsel’s]

hypothetical and the application of res judicata, which is simply that it was fully litigated in

another jurisdiction to a Final Order. So there would be nothing left for this court to be

determined.” Wife’s counsel added that, “[i]f the court in Nepal adjudicates the property case

and sets forth orders regarding certain pieces of property, then those pieces of property would not

be re-litigated in this court.”

Moreover, the parties agreed on August 20, 2013, to stay the proceedings in Fairfax

County Circuit Court, “pending a resolution of Ms. Bajgain’s claims now pending before the

Court of Nepal.” The claims then pending in Nepal included wife’s suit in coparceny, i.e., for

division of marital property, filed August 30, 2011, and her forgery claims filed before the circuit

court stayed its equitable distribution proceedings.

The record supports the circuit court’s conclusion that wife agreed to be bound by

whatever issues were resolved to finality in Nepali courts, and to reserve jurisdiction in Fairfax

County Circuit Court for whatever issues remained unadjudicated. Moreover, wife was the one

who initiated the litigation in Nepal, where she was represented by counsel. Reviewing the

circuit court’s construction of its own order under a deferential abuse of discretion standard, we

affirm its decision that the parties’ stipulation precludes wife from relitigating the issues the

Nepali court resolved.

B. The Nepali court divided all of the marital assets.

Relying on her own expert’s testimony, wife maintains that the Nepali court had no

jurisdiction over property or assets located in the United States and, therefore, the Fairfax County

Circuit Court should allocate those assets. She also suggests that the Nepali court did not, in

fact, distribute all of the marital property. The circuit court, however, found credible the

testimony from husband’s expert that the Nepali court had, in fact, divided all of the parties’

- 12 -

assets.7 The evidence shows that wife and husband submitted property schedules, with

husband’s schedule including property located in the United States, to the Nepali court and that

the Nepali court proceeded to divide that property. Assuming, as wife argues, that the Nepali

court erred under the laws of that country, the remedy for wife was to seek relief in Nepal, not

Virginia. Indeed, wife had her Nepali divorce decree vacated following an appeal. The evidence

supports the circuit court’s conclusion that the Nepali court allocated all of the parties’ property,

including property located in the United States, and that the parties’ stipulation foreclosed her

from relitigating the distribution of marital property in Fairfax County.

Wife also argues that she contemplated that the Nepali court would only divide property

located there and that the Fairfax County Circuit Court would divide property located in the

United States. She maintains that, under those circumstances, the joint stipulation does not

preclude her from litigating the division of property held in the United States. In his motion to

stay equitable distribution proceedings in Fairfax County, filed May 25, 2012, husband noted

that the Morang District Court would divide “[a]ll property which existed as of August 29, 2011

. . . to include assets held in the United States.” Wife did not then dispute husband’s

characterization of what the Nepali court intended to do. Further, the Morang District Court’s

order acknowledges that wife “has . . . demanded the partition share from the property in

America . . .” and also makes clear that one of her pleadings “accepted” that property located in

the United States would be partitioned. Whatever wife’s initial expectations might have been,

the ultimate outcome of the Nepali litigation that she initiated could not possibly have come as a

surprise.

7

The parties did not own any real estate in Virginia. Therefore, this case does not

present the issue of a foreign court disposing of real estate located in Virginia.

- 13 -

C. The circuit court’s well-founded interpretation of the parties’ stipulation

forecloses relitigation of wife’s claim that husband dissipated marital assets.

Wife’s third assignment of error is that the circuit court erred in concluding that wife

was given a fair opportunity to be heard during the Morang District

Court proceedings when [husband] failed to disclose all marital

assets and provided false evidence and other information to the

Morang District Court to support his waste and dissipation of

marital assets which was specifically done in contemplation of

divorce and was in violation of the standing Pendente Lite order.

It is undisputed that husband transferred large sums of money to family members. Wife

initiated forgery proceedings in the Nepali court attacking these transfers. Husband argued that

he made these transfers to repay loans extended by family members. The Nepali court, after

hearing evidence from both sides and “studying the documents enclosed with the case file,”

concluded that wife had failed to prove her case. It accordingly ruled in husband’s favor. Wife

agreed by stipulation to be bound by the Nepali court’s decisions. The circuit court specifically

found that wife received a fair hearing in Nepal and that she had the opportunity to present her

case and be heard. That conclusion finds ample support in the record. Wife, who is bound by

the joint stipulation not to relitigate issues litigated to finality in Nepal, may not now reopen this

issue for another round of litigation in Fairfax County.

D. Wife’s decision to pursue the division of property in the Nepali court also

forecloses her claim for spousal support.

Wife also assigns error to the circuit court’s conclusion that the Nepali court’s division of

property prevents her from seeking spousal support in Fairfax County. As noted above, wife

agreed to be bound by whatever issues were litigated to finality in Nepal. Under the law of

Nepal, the allocation of property is the means by which a divorced woman is to support herself –

there is no spousal support after the property is partitioned. The record indicates that, generally

speaking, the class of property available for distribution in Nepal is broader than what would

have been available for distribution in Virginia. Under Virginia law, property acquired before

- 14 -

the marriage, as well as property inherited during the marriage, constitutes separate property.

Code § 20-107.3(A)(1). In contrast, Nepali law calls for the distribution of property gifted

before the marriage, as well as inherited property. Once the court made a full distribution of

property to her, wife could no longer claim spousal support under the law of Nepal. In other

words, the proceeding wife initiated in Nepal was not confined to distribution of property located

there, with the remainder of the issues to be decided by a court in Virginia. Instead, the court in

Nepal distributed all of the parties’ property. That distribution of property foreclosed wife from

seeking spousal support under the law of Nepal. Wife agreed that resolution of legal issues in

the courts of Nepal would foreclose relitigation of those issues in Virginia. Accordingly,

notwithstanding wife’s initial reservation of the right to litigate the issue of spousal support in

Fairfax, the circuit court correctly concluded that the parties’ stipulation precluded wife from

seeking spousal support following the conclusion of the proceedings in Nepal.

III. FULL FAITH AND CREDIT, COMITY, AND UNCLEAN HANDS

Wife claims in her first assignment of error that the circuit court erred by giving full faith

and credit to the Nepali court’s division of property. First, we note that under settled law, the

Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1, does not

apply to the judgments of foreign nations. Oehl v. Oehl, 221 Va. 618, 622, 272 S.E.2d 441, 443

(1980). Instead, principles of comity apply to such judgments. Id.; see also McFarland v.

McFarland, 179 Va. 418, 430, 19 S.E.2d 77, 83 (1942) (discussing comity). Wife urges us to

apply ordinary principles of comity to this case. Contending that Nepal’s support and equitable

distribution laws differ from Virginia’s and that Nepali courts do not accord reciprocity to the

divorce decisions of our (or our sister states’) courts, she argues that we should refuse to

recognize the Nepali court’s decisions.

- 15 -

This, however, is not the typical comity case where a party obtains a judgment in a

foreign nation and then seeks to have it recognized in Virginia. Here, wife agreed that she would

not relitigate issues resolved in the Nepali court. She then initiated multiple proceedings in

Nepal. Given our ruling as to the stipulation’s preclusive effect, ordinary principles of comity do

not come into play. Instead, the case is controlled by the parties’ joint stipulation, which, as we

have noted, forecloses wife from sidestepping the adverse judgment that she obtained in Nepal.

Wife contends in her final assignment of error that the circuit court erred when it held

that she had unclean hands and that she was guilty of “double dipping.” The parties assume that

the equitable doctrine of unclean hands doctrine applies. We have held, however, that “[t]he

‘clean hands doctrine’ is unavailable to a party when it is asserted in the context of equitable

distribution proceedings,” Westbrook v. Westbrook, 5 Va. App. 446, 457, 364 S.E.2d 523, 530

(1988), and that it “does not apply to the determination of a spousal support award pursuant to

Code § 20-107.1,” Huger v. Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993). We

explained in Westbrook that although divorce cases appear on the chancery side of the docket,

the many statutory limitations placed on divorces differentiate those cases from ordinary suits in

equity. 5 Va. App. at 455-57, 364 S.E.2d at 529-30. Consequently, in adjudicating these cases,

we look to the terms of the statute rather than equitable maxims. Id. at 457, 364 S.E.2d at 530.

See also Huger, 16 Va. App. at 790-91, 433 S.E.2d at 258-59 (relying from Westbrook and

holding that spousal support awards turn on statutory considerations). Consistent with these

holdings, we decline to apply the equitable doctrine of unclean hands here.8 Because the circuit

8

Husband requests attorney’s fees in connection with his defense of this appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Considering the

record and the arguments before us, we deny his request.

- 16 -

court invoked unclean hands as a secondary ground for its decision, the doctrine’s inapplicability

does not change our conclusion as to the stipulation’s preclusive effect.

CONCLUSION

We affirm the decision of the circuit court.

Affirmed.

- 17 -