Lots of Goodies in This CAV Opinion
On Tuesday, February 14, the Court of Appeals decides an appeal involving a cause to annul a marriage as bigamous. The ruling is worthy of study on a great many levels, for numerous holdings on issues that will enjoy application in many other types of cases. Tuesday’s decision is Rahnema v. Rahnema, and arose in the Virginia Beach Circuit Court.
Dr. Mansur Rahnema, a well-known Tidewater physician, found himself in a complicated divorce in the late 90’s. After the marriage was dissolved, the divorce case remained on the docket for several years, preparing for a ruling on distribution of the parties’ assets. On the day before the final distribution hearing was scheduled in April 2004, the doctor filed a separate suit asking that the marriage be annulled based on adultery; his wife was previously married in Iran, and he asserted that she was still so married when these parties married in 1993. His reason for doing so is clear: If the marriage was bigamous, then it was no marriage at all; if there were no marriage, then there would be no equitable distribution, and the doctor would get to keep all his stuff. The doctor also procured a criminal bigamy prosecution of his wife that ended in an acquittal in 2004. This appeal stems exclusively from the annulment proceeding, which had ended with the chancellor’s ruling that the doctor had failed to carry the burden of proving adultery.
Most of the disputes in the case arise in the context of evidentiary and procedural issues that unfolded during the trial. The three principal evidentiary issues were:
Admission of all of the criminal trial exhibits (by consent) into evidence without any evidentiary foundation;
The use of criminal trial testimony, in the form of a transcript, from the doctor’s brother; and
A transcription of a deposition taken in Turkey, under circumstances that can only be described as horribly inadequate.
Criminal trial exhibits
The appellate court turns aside the doctor’s challenge to the criminal trial exhibits in predictable fashion; the doctor’s trial counsel had consented, along with his adversary, to the admission of the criminal trial exhibits as a group. Evidently recognizing an error too late in the game, the attorney tried to withdraw that consent as to the defense criminal exhibits. But this change of heart came well after the admission of the entire body of the exhibits, the propriety of which had been confirmed on more than one occasion by the chancellor. Tuesday’s opinion notes that a stipulation cannot be withdrawn after it is made, and holds that “Trial judges must be able to rely on counsel to make tactical concessions during trial.”
De bene esse testimony of an absent witness
The chancellor refused the testimony of the doctor’s brother, since he had voluntarily gone back to Iran shortly before the annulment hearing. The brother had allegedly been available to testify at the original trial date in October 2004, but when the trial was continued until December, the brother left Virginia, stayed in New York for a time, and then returned to Iran. The doctor offered that the brother, then aged 84 years, was in feeble health, and would not be able to return to Virginia to testify. Perhaps so, the appellate court reasons, but that does not explain why his testimony was not perpetuated by de bene esse deposition at that point. Finding that the brother was not legitimately unavailable, the court affirms the trial court’s exclusion of the criminal trial testimony.
The final evidentiary issue relates to the deposition of Mrs. Rahnema’s former spouse. The procedural irregularities with regard to this deposition will be breathtaking to experienced trial lawyers. For example, the deposition was originally noticed for London, England. The notice was then amended to call for the deposition to be taken in Ankara, in northern Turkey. But then the location was changed again, this time without notice to Mrs. Rahnema’s counsel, to Istanbul. It actually occurred one day after the date in the notice. With all these developments, it should come as no surprise that Mrs. Rahnema’s lawyer was not present for the deposition. But neither, you will be surprised to learn, was a court reporter; the doctor’s lawyer interviewed the ex-spouse on a tape recorder, and concluded the interview before the court reporter showed up. Even then, the entire matter was conducted through an un-credentialed translator, and the certification of the court reporter included many areas where the reporter admitted that she simply prepared the questions and answers to the extent she could understand them. There were several areas in which blanks appeared because of the reporter’s admitted inability to understand what the witness was saying. Because of these factors, the trial court unsurprisingly found the deposition transcript “inherently unreliable” and did not give it any meaningful weight in reaching his decision.
But wait; there’s more! Those were just the evidentiary issues in this fascinating opinion. The procedural issues provide discussion that is every bit as worthy of study as the evidentiary matters.
Rule 1:18 waiver
First and foremost, the opinion contains a discussion of a topic that, to my knowledge, has never before received appellate attention in our courts. Every Virginia trial lawyer is familiar with uniform scheduling orders; anyone who litigates in the circuit courts has endorsed many of the forms. Many lawyers also recognize that the order requires an exchange by counsel of witness and exhibit lists shortly before the trial date. And a few may recall that the form order also requires that any objections to your opponent’s witnesses or exhibits (other than on the grounds of relevance) be filed in writing within five days before trial. If no objections are filed, then they “will be deemed waived absent leave of court for good cause shown.”
Did you know that last part? Did you realize that if your opponent doesn’t file objections to your exhibits, you can simply tender them into evidence at trial, as long as they’re relevant, since there are no objections to them? This is a powerful tool that goes largely unused in Virginia trial practice. But in this case, the doctor’s lawyer used it. Mrs. Rahnema’s lawyer did not file a timely objection to the deposition transcript. At trial, when the doctor offered it into evidence, and the wife objected, the doctor pointed out the late objection.
This procedural issue is important enough for a short digression, especially since it’s a question of first impression here. The Court of Appeals writes, in language that should awaken the interest of every practicing lawyer:
“To be effective, pretrial deadlines in Rule 1:18 scheduling orders must be enforced by Virginia trial courts. There is little point in issuing such orders if they amount to nothing more than a juristic bluff – obeyed faithfully by conscientious litigants, but ignored at will by those willing to run the risk of unpredictable enforcement. The impartial, consistent enforcement of scheduling orders provides systemic benefits to litigants and trial courts alike.”
I always strive in crafting essays for this site to provide information and practice tips that will be of use to my readers. Here is a vital one: Even if you do not take advantage of this rule and this language, someday soon your adversary will. Virginia attorneys must pay more careful attention to the objection requirements in these orders, or they will soon find themselves facing the introduction of otherwise inadmissible evidence. This memorable language will, sooner or later, be cited in nearly every circuit courtroom across the Commonwealth. You should be the one citing it, not your adversary.
That’s the end of the digression. But the eventual outcome for the doctor was that he won an empty victory on this point. The appellate court specifically notes that a party who has not filed a timely objection to an exhibit may nevertheless urge the finder of fact to disregard it due to its inherent untrustworthiness, and that’s exactly what happened here. Citing authorities from other jurisdictions, the court notes that the fact that evidence has been admitted without objection does not enhance its probative value. This will probably seem like an ultra-fine distinction to many attorneys, and one might conclude that this exception swallows the rule of admissibility by waiver. I don’t agree; while the exception may provide a “get out of jail free” card in many instances, such as hearsay, it will not apply in a host of other contexts, such as where a statute or evidentiary rule makes certain evidence inadmissible on policy grounds. Evidence of subsequent remedial measures, or of offers of settlement, come to mind. It is readily foreseeable to me that a party may list as an exhibit a document that reflects confidential communications between a minister and one of his parishioners; if the defendant does not file a timely written objection, I believe a subsequent objection at trial based on Code §8.01-400 will be held to have been waived.
A law v. chancery issue
The next procedural issue in the case is one that may by now be obsolete with the creation of a single form of action under the new Part 3 of the Rules of Court. At the close of the doctor’s case in chief, Mrs. Rahnema’s attorney moved to strike the plaintiff’s evidence. The doctor’s attorney responded confidently and forcefully that such a motion could not be made in chancery; the chancellor was required to hear and decide the case upon all of the evidence, and could not decide the case until all the evidence was received.
The opinion points out that this objection might have been meritorious before the predecessor to Code §8.01-282 was enacted in 1954; that statute specifically authorizes such motions in chancery cases. My dog-eared (but never dusty) copy of Judge Burks’ treatise on Pleading and Practice, dated 1952, does not mention such a distinction, and I am confident that one did not exist when this case was tried in 2004. But as the motion and subsequent proceedings unfolded, it became a non-issue. Here’s how:
The chancellor stated that he would take the motion under advisement. He then asked the wife’s attorney if he would offer any evidence. The attorney answered that he wanted to check to be sure that all of the criminal exhibits were in the court’s file, and that if they were, the wife would rest without anything further. During a brief recess, it was determined that the exhibits were a complete set. The parties so advised the court, which then adjourned to consider things. When the parties returned the next morning, perhaps expecting to present final argument, the chancellor had a small surprise for them: A ruling. He determined that the doctor had failed to prove that the marriage was bigamous, and entered judgment for the defendant.
On appeal, the doctor again raised the ostensible bar to motions to strike in chancery cases. The appellate court wasn’t having any of that; it rules that if, indeed, this was error, the doctor invited it. Since the chancellor was hearing all the evidence as a factfinder, not just as a gatekeeper for a jury’s determination, he was entitled, once he learned that all of the evidence was in, to consider it and make a decision.
BURDEN OF PROOF
The chancellor ruled that the doctor’s burden to prove bigamy was formidable indeed – a clear and convincing standard, culled from equitable rescission claims in equity. The appellate court affirms this ruling, relying on rulings from a number of other jurisdictions that have considered the issue. It notes that a marriage creates a particularly strong presumption of its validity. Decisions from elsewhere have consistently found this to be “one of the strongest presumptions known in law.” It thus finds it appropriate to require a strong degree of proof – here, by clear and convincing evidence – in order to overcome that presumption.
Tuesday’s opinion offers one additional tidbit, in the form of a footnote addressing one final argument raised by the doctor. He had pointed out in the trial court that, when he requested production of Mrs. Rahnema’s passport, she produced an incomplete copy of it; the page showing her marital status (presumably just before her marriage to the doctor) was missing. He argued to the chancellor that the court should infer that the full passport would contain information that was unfavorable to her, specifically, that she was already hitched at the time. The wife responded, among other things, that she did not have her passport because the doctor “had taken it years earlier.” (Tuesday’s ruling hints at some of the differences between Iranian and American marriages, including the husband’s right in the former relationship to govern his wife’s conduct.) The chancellor took the matter under advisement, and apparently did not comment on it further when he made his ruling.
The doctor appealed the chancellor’s apparent failure to make an adverse inference, arguing that the wife had concealed evidence. The Court of Appeals rejects this assertion, noting that while Virginia does have a spoliation doctrine, it creates only a permissive inference, not a true presumption. (There is a much fuller discussion of the difference between permissive inferences and presumptions in chapter 10 of the 6th edition of Professor Friend’s treatise on Evidence.) While the chancellor was required to consider this information, he “had no legal duty to accept it.”
This case simply teems with useful, practical information and guidance, even if you never file a suit to annul a marriage. There are discussions of evidence, burdens of proof, timeliness of objections, and even spoliation. I am not aware of another case of this brevity (the slip opinion is just 16 pages, and is, in comparison with many other appellate opinions, a page-turner) that contains such a breadth of coverage. And all, to top it all off, with a 2006 “postmark,” making it the court’s most recent pronouncement on each of these issues.