830 S.E.2d 45
Va. Ct. App.2019Background
- Parties divorced in 2017; mother awarded sole custody and father ordered to pay spousal and child support.
- Father later sought modification of support, stating he receives $3,627.58/month in veterans’ disability benefits and arguing those benefits should not be counted as income.
- Mother moved to increase support and sought attorney’s fees; she was unemployed and incurred about $30,731.40 in fees/costs.
- At the August 31, 2018 hearing the court increased father’s child support (to $1,227/month), declined to modify spousal support, and explicitly considered father’s veterans’ disability benefits as part of his gross income.
- The court awarded mother $20,331.40 in attorney’s fees, noting father’s defenses were meritless and required extensive research; it did not base the fee award on the disability payments.
- Father appealed, arguing federal law (pre-emption / Supremacy Clause and Howell) barred using veterans’ disability benefits to calculate state child support; he also challenged the fee award.
Issues
| Issue | Adel (father) Argument | Aylin (mother) Argument | Held |
|---|---|---|---|
| Whether veterans’ disability benefits may be counted as income for state child support calculations | Federal law (including Howell and certain veterans’ statutes) pre-empts state consideration of disability benefits as income | State law (Va. Code §20-108.2(C)) and controlling precedent permit considering veterans’ benefits as income for support | Veterans’ disability benefits may be considered as income for child support purposes; court affirmed inclusion |
| Whether Howell requires exclusion of disability benefits from income calculations | Howell prevents treating military disability benefits as divisible property and, father contends, limits state use of such benefits in family-law economic orders | Howell does not address counting disability pay as income for child support; Rose controls on income consideration | Howell is inapplicable; it concerns property division not income for support; Rose governs and allows consideration |
| Whether certain federal statutes (e.g., 38 U.S.C. §3101, 10 U.S.C. §1408, 42 U.S.C. §659) pre-empt state child-support treatment of veterans’ benefits | These statutes bar attachment/seizure or limit apportionment, so they pre-empt state courts from treating benefits as income | Statutes do not unequivocally show Congress intended exclusivity; Rose and subsequent authority hold state courts may require veterans to use benefits to satisfy support | Federal statutes cited do not pre-empt state consideration; Rose and Virginia precedent control |
| Whether the trial court abused discretion in awarding mother $20,331.40 in attorney’s fees | Father argued award was erroneous (brief lacked legal development) | Mother sought fees incurred; trial court found father’s arguments meritless and ordered fees | Fee award affirmed; father’s appellate brief failed to preserve/adequately argue error under Rule 5A:20 |
Key Cases Cited
- Howell v. Howell, 137 S. Ct. 1400 (U.S. 2017) (addressed division of military retirement/disability pay as property in divorce)
- Rose v. Rose, 481 U.S. 619 (U.S. 1987) (held veterans’ disability benefits may be considered as a source of income for state child support orders)
- Hillman v. Maretta, 569 U.S. 483 (U.S. 2013) (presumption against pre-emption in domestic relations; state family-law sovereignty)
- Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894 (U.S. 2019) (caution on inferring pre-emption; respect what Congress did not write)
- Lambert v. Lambert, 10 Va. App. 623 (Va. Ct. App. 1990) (Virginia precedent recognizing veterans’ disability benefits as income for spousal/child support)