ADEL ELIAS ALWAN v. AYLIN TUNC ALWAN, N/K/A AYLIN TUNC
Record No. 1711-18-4
COURT OF APPEALS OF VIRGINIA
JULY 23, 2019
JUDGE ROSEMARIE ANNUNZIATA
PUBLISHED. Present: Judges Petty, Malveaux and Senior Judge Annunziata. Argued at Alexandria, Virginia. FROM THE CIRCUIT COURT OF LOUDOUN COUNTY, Jeanette A. Irby, Judge.
Carson J. Tucker (William D. Wilkinson; Katherine Martell; LexFori, PLLC; First Point Law Group, P.C., on briefs), for appellant.
Walter C.
Appellant, Adel Elias Alwan (father), invokes the United States Supremacy Clause and federal pre-emption doctrine to appeal the circuit court‘s findings that his “veterans’ disability benefits could be considered in the calculation of his child support obligations” and the award of attorney‘s fees made to Aylin Tunc Alwan (mother). We find no error and affirm the decision of the circuit court.
BACKGROUND
The parties married in February 2010, and two children were born of the marriage. On June 2, 2017, the circuit court entered a final decree of divorce, awarding mother sole legal and physical custody of the minor children and establishing a visitation schedule for father. The circuit court ordered father to pay spousal support and child support to mother.
On August 31, 2018, the parties appeared before the circuit court to be heard on the competing motions to modify visitation and support. After hearing father‘s evidence, the circuit court granted mother‘s motion to strike the custody matters but amended father‘s visitation to reflect his new work schedule. Then, the circuit court heard evidence regarding support.
Father testified that he had worked for a company overseas for 105 days and earned approximately $50,000 since the entry of the final decree of divorce. At the time of the hearing, father worked for a different company and earned $52,000 per year. In addition, father clarified that he was not eligible for military retirement, but as of March 5, 2018, father received $3,627.58 per month in veterans’ disability benefits, which he contended should not be included in his income to calculate his child and spousal support obligations. Father had no debts since he had filed for bankruptcy and his outstanding debts had been discharged. Thus, his financial obligations only included rent, a car payment, support arrearages, and payments on a prior award of attorney‘s fees.
Mother testified that at the time of the hearing, she was not working and lived in her parents’ basement with her children. Every other week, she received a $250 check from her parents’ hair salon to help with her expenses. She stated her parents took out a loan for her attorney‘s fees, and she reimbursed them when she had funds available. Mother confirmed that from January 4, 2018, through August 28, 2018, her attorney‘s fees and costs totaled $30,731.40.
After closing arguments, the circuit court found that father received veterans’ disability payments and “rejected as meritless” father‘s argument that his veterans’ disability benefits could not be considered income for child support purposes. Based on the evidence, the circuit court increased father‘s child support obligation, but did not modify spousal support. In using father‘s disability benefits to determine his support obligations, the circuit court did not direct father to use those benefits to pay his support obligations and stated that father was “free to use whatever funds he chose[] to pay for his support obligations.”
The circuit court further ordered father to pay $20,331.40 toward mother‘s attorney‘s fees and costs, noting the extensive amount of research that was necessary to address father‘s arguments, on the ground they proved to be without merit and in light of “the amount of money that [mother] had to spend on the issue.” The circuit court did not consider father‘s veterans’ disability payments in determining his ability to pay attorney‘s fees, but weighed father‘s lack of debt and his refusal to pay the children‘s medical expenses against his decision to purchase an engagement ring for his fiancee. The circuit court again advised father that he could use “whatever source of funds [he] want[ed] to use to pay [his] obligations.”
On October 5, 2018, the circuit court entered a final order memorializing its rulings. This appeal followed.
ANALYSIS
I. Child Support
“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.” Tidwell v. Late, 67 Va. App. 668, 673 (2017) (quoting Niblett v. Niblett, 65 Va. App. 616, 622 (2015)).
all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
(Emphasis added).
“Statutory child support guidelines were designed ‘to assure that both the child‘s needs and the parent‘s ability to pay are considered in determining the amount of support awards.‘” Milam v. Milam, 65 Va. App. 439, 453 (2015) (quoting Oley v. Branch, 63 Va. App. 681, 689 (2014)). “Child support awards are thus crafted for the child‘s benefit, not for the purpose of granting a parent relief.” Id.; see also Stiles v. Stiles, 48 Va. App. 449, 456 (2006) (“The court‘s paramount concern when awarding child support is the best interest of the children.“).
In support of father‘s arguments on appeal that his veterans’ disability benefits cannot be considered under principles of pre-emption to determine child support under state law, he cites the United States Supreme Court decision in Howell v. Howell, 137 S. Ct. 1400 (2017).1 In
Howell, the United States Supreme Court held that states could not divide military disability benefits as property in a divorce. Id. at 1405-06. We find the decision in Howell is not determinative, as it said nothing about the propriety of a state court‘s consideration of military disability benefits as a source of funds in making a child support award.
The United States Supreme Court recently addressed the issue of pre-emption and emphasized that the courts “are hardly free to extend a federal statute to a sphere Congress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn‘t write.” Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019).
Whether federal law pre-empts state law is a question of law reviewed de novo by this Court. Maretta v. Hillman, 283 Va. 34, 40 (2012), aff‘d, 569 U.S. 483 (2013). “The preemption of state laws represents ‘a serious intrusion into state sovereignty.‘” Virginia Uranium, Inc., 139 S. Ct. at 1904 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996) (plurality opinion)). Traditionally, “domestic relations is . . . the domain of state law.” Hillman v. Maretta, 569 U.S. 483, 490 (2013). “There is therefore a ‘presumption against pre-emption’ of state laws governing domestic relations . . . .” Id. (quoting Egelhoff v. Egelhoff, 532 U.S. 141, 151 (2001)). “[F]amily and family-property
Applying these principles in a case that preceded the 2017 Howell decision, the United States Supreme Court addressed expressly whether veterans’ disability benefits could be considered by state courts as “income” for purposes of calculating support. Rose v. Rose, 481 U.S. 619 (1987). Appellant Charlie Wayne Rose, a totally disabled veteran of the Vietnam War, had income composed entirely of benefits received from the Veterans’ and Social Security Administrations. Id. at 622. The Circuit Court for Washington County, Tennessee considered those benefits to calculate Rose‘s child support obligations under
When Rose was held in contempt for failure to pay his support obligation, he argued that
The United States Supreme Court disagreed with Rose‘s contentions. “Neither the Veterans’ Benefits provisions of Title 382 nor the garnishment provisions of the Child Support
Enforcement Act of Title 423 indicate
The Supreme Court also rejected Rose‘s contention that, because
The analysis in Rose has been accepted and applied in numerous state courts that have addressed the issue, including this Court in its 1990 decision in Lambert v. Lambert, 10 Va. App. 623 (1990). We held that Congress and the United States Supreme Court had excluded veterans’ disability benefits from equitable distribution. Id. at 627. However, we further concluded that the value of the veterans’ disability benefits “may be considered as a source of income of the disabled spouse in awarding spousal support or child support” and reversed the trial court on the ground it had failed to consider that income in determining its award of spousal support. Id. at 627-28. This Court found that veterans’ disability benefits were “properly considered as income for purposes of determining both spousal and child support.” Id. at 629. See also Goldman v. Goldman, 197 So. 3d 487, 493-94 (Ala. Civ. App. 2015); Belue v. Belue, 828 S.W.2d 855, 857 (Ark. App. 1992); Loving v. Sterling, 680 A.2d 1030, 1032 (D.C. 1996); In re Marriage of Lee, 486 N.W.2d 302, 305 (Iowa 1992); Casey v. Casey, 948 N.E.2d 892, 902 (Mass. App. Ct. 2011); and Nero v. Nero, 48 P.3d 127, 130 (Okla. Civ. App. 2002).
Furthermore, even after the United States Supreme Court released its ruling in Howell in 2017, the holding in Rose remained viable as evidenced by several state courts confirming that veterans’ disability benefits could be considered as income for child support purposes. See, e.g., Lesh v Lesh, 809 S.E.2d 890, 899 (N.C. Ct. App. 2018) (“Nothing in Howell alters the holding in Rose that military disability benefits are not required to be excluded from the definition of income for purposes of calculating the resources a party can draw upon to fulfill child support obligations.“). Likewise, courts in Alabama and New York have held that veterans’ disability benefits could be considered as income for child support obligations. See Holmes v. Alabama Dep‘t of Human Resources, ___ So. 3d ___ (Ala. Civ. App. Oct. 5, 2018); Nieves v. Iacono, 162 A.D.3d 669 (N.Y. App. Div. 2018).
Indeed, in this appeal, father acknowledges that “since Rose, . . . most, if not all[,] state courts have construed it as a blanket allowance to include all veterans’ disability pay as income for consideration in calculating a veteran‘s support obligations in state court family law proceedings.” However, he challenges those decisions and contends that Rose and its progeny, including Lambert, do not apply here. As he argued in the trial court, father cites certain federal statutes to counter the viability and reach of the Rose decision. However, the statutes he cites are essentially the same statutes that were rejected as controlling in Rose.4 Therefore, we disagree with
We further disagree with his contention that the decision in Howell requires his veterans’ disability benefits be excluded from the definition of income for purposes of calculating a parent‘s child support obligation. Howell addressed the treatment and division of military disability benefits as “property” in divorce, not as income used to support a veteran‘s dependents. Howell, 137 S. Ct. at 1403-06. The United States Supreme Court stated that it “need not and . . . [will] not decide” how a state court can “take account of the contingency that some military retirement pay might be waived, or . . . take account of reductions in value when it
calculates or recalculates the need for spousal support.” Id. at 1406. Howell did not address the calculation of a veteran‘s income for child support purposes.
Accordingly, based on the United States Supreme Court‘s decision in Rose and this Court‘s decision in Lambert, we find the circuit court did not err in finding father‘s reliance on the cited federal statutes was “wholly misplaced” as they do not state that veterans’ disability benefits could not be considered as income for support purposes. We further find the circuit court did not err in following the direction of
II. Attorney‘s Fees
A.
Father argues that the circuit court erred in awarding mother $20,331.40, plus interest, for her attorney‘s fees. Father‘s opening brief includes a conclusory statement that the circuit court
erred by awarding attorney‘s fees to mother, but he did not provide any legal authority to support his argument.
Father has the burden of showing that reversible error was committed. See Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012). Rule 5A:20(e) mandates that an appellant‘s opening brief include “[t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error.” Father did not comply with Rule 5A:20(e) because his opening brief does not contain any principles of law or citation to legal authorities to fully develop his argument. “[I]t is not the function of this Court to ‘search the record for error in order to interpret the appellant‘s contention and correct deficiencies in a brief.‘” West, 59 Va. App. at 235 (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992)). “Nor is it this Court‘s ‘function to comb through the record . . . to ferret-out for ourselves the validity of [appellant‘s] claims.‘” Burke, 59 Va. App. at 838 (quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc)).
We find that father‘s failure to comply with Rule 5A:20 is significant, so we will not consider his arguments. See Fadness v. Fadness, 52 Va. App. 833, 851 (2008) (“If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention.“); Parks v. Parks, 52 Va. App. 663, 664 (2008).
B.
Mother asks this Court to award her attorney‘s fees incurred on appeal. See O‘Loughlin v. O‘Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award attorney‘s fees and costs incurred on appeal is discretionary.” Friedman v. Smith, 68 Va. App. 529, 545 (2018). We conclude that an award of appellate attorney‘s fees is not warranted under the present circumstances, since “neither party generated unnecessary delay or expense in pursuit of its interests.” Porter v. Porter, 69 Va. App. 167, 176 (2018) (quoting Estate of Hackler v. Hackler, 44 Va. App. 51, 75 (2004)); see also Rule 5A:30(b).
CONCLUSION
For the foregoing reasons, the circuit court‘s ruling is affirmed.
Affirmed.
Notes
Id. at 628.Given the traditional authority of state courts over the issue of child support, their unparalleled familiarity with local economic factors affecting divorced parents and children, and their experience in applying state statutes such as Tennessee‘s former § 36-820 that do contain detailed support guidelines and established procedures for allocating resources following divorce, we conclude that Congress would surely have been more explicit had it intended the Administrator‘s apportionment power to displace a state court‘s power to enforce an order of child support.