COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Malveaux and Senior Judge Annunziata
Argued at Alexandria, Virginia
PUBLISHED
ADEL ELIAS ALWAN
OPINION BY
v. Record No. 1711-18-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 23, 2019
AYLIN TUNC ALWAN, N/K/A
AYLIN TUNC
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. Jacob for appellee.
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.
In late 2017 and early 2018, the parties filed several motions regarding visitation, child
care, support, and other related matters, as well as a petition for rule to show cause. On March
23, 2018, each party filed motions regarding support. Father filed pro se a motion to modify
child support and spousal support, stating he had served in the military from July 23, 2007,
through July 22, 2011, and was found to be totally and permanently disabled, not due solely to
his service-connected disabilities, however. Mother filed a motion to increase spousal and child
support, alleging father earned more income since the entry of the final decree of divorce and his
debts had been discharged in bankruptcy. Mother also sought an award of attorney’s fees.
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.
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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 fiancée. 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)).
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Under Virginia law, “veterans’ benefits” are a source of income to be considered by the
trial court to calculate gross income for child support purposes. Code § 20-108.2(C) includes
veterans’ benefits in its definition of gross income:
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
1
The federal government “has long provided . . . disabled members of the Armed Forces
with disability benefits.” Howell, 137 S. Ct. at 1402-03. However, in a prior case heard in 1981,
the United States Supreme Court held a state could not consider military retirement pay as a form
of community property and could not divide it in divorce proceedings. McCarty v. McCarty, 453
U.S. 210 (1981). With the passage of the Uniformed Services Former Spouses’ Protection Act,
10 U.S.C. § 1408, the following year, the states could treat veterans’ “disposable retired pay” as
community property that could be divided upon divorce, but the Act excluded disability benefits
from “disposable retired pay.” Howell, 137 S. Ct. at 1403. The United States Supreme Court
subsequently addressed the issue again and found that the Uniformed Services Former Spouses’
Protection Act “did not ‘gran[t]’ the States ‘the authority to treat total retired pay as community
property.’” Id. at 1404 (quoting Mansell v. Mansell, 490 U.S. 581, 589 (1989)). “Congress
excluded from its grant of authority the disability-related waived portion of military retirement
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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 law must do ‘major damage’ to ‘clear and substantial’
federal interests before the Supremacy Clause will demand that state law will be overridden.” Id.
at 490-91 (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)). “But family law is not
entirely insulated from conflict pre-emption principles, and so we have recognized that state laws
‘governing the economic aspects of domestic relations . . . must give way to clearly conflicting
federal enactments.” Id. at 491 (quoting Ridgway v. Ridgway, 454 U.S. 46, 55 (1981)).
pay.” Id. Father relies on this language to support his arguments that the circuit court erred by
considering his veterans’ disability benefits as income to determine his child support obligation.
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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 Tenn. Code Ann.
§ 36-5-101(e)(3) (1984) (formerly Tenn. Code Ann. § 36-820 (1977)). Id.
When Rose was held in contempt for failure to pay his support obligation, he argued that
38 U.S.C. § 3101(a), which provided that veterans’ benefits could not be subject to attachment,
levy, or seizure, pre-empted a state court’s jurisdiction over veterans’ disability benefits and a
state court’s ability to enforce child support obligations. Id. at 630. Rose reasoned that only the
Veterans’ Administration could order him to pay child support with his disability benefits and
that the state had no jurisdiction over those benefits. Id. at 623. Rose also cited 42 U.S.C.
§ 659(a) to argue that it “embodies Congress’ intent that veterans’ disability benefits not be
subject to any legal process aimed at diverting funds for child support, including a state-court
contempt proceeding of the sort invoked in this case.” Id. at 635.
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
2
Rose relied on 38 U.S.C § 3107(a)(2) and 38 U.S.C § 3101(a) to support his arguments.
38 U.S.C. § 3107(a)(2) “gives the Administrator of Veterans’ Affairs discretionary authority to
apportion disability compensation on behalf of a veteran’s children.” Rose, 481 U.S. at 626.
The Court in Rose rejected appellant’s argument that this statutory grant of authority was
exclusive to the Administrator and that it deprived the state courts of jurisdiction to consider a
veteran’s disability benefits in calculating child support. Id. at 626-28. “In none of these
provisions is there an express indication that the Administrator possesses exclusive authority to
order payment of disability benefits as child support.” Id. at 627. “Nor is it clear that Congress
envisioned the Administrator making independent child support determinations in conflict with
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Enforcement Act of Title 423 indicate unequivocally that a veteran’s disability benefits are
provided solely for that veteran’s support.” Id. at 636 (emphasis added). The United States
Supreme Court determined that Congress intended veterans’ disability benefits “to ‘provide
reasonable and adequate compensation for disabled veterans and their families,’” id. at 630
(quoting S. Rep. No. 98-604, p. 24 (1984)) (emphasis in original), and that veterans’ disability
benefits were “to be used, in part, for the support of veterans’ dependents,” id. at 631 (emphasis
added). Accordingly, the United States Supreme Court found that Tennessee Code § 36-820,
pursuant to which Rose’s veterans’ disability benefits were considered to determine his child
support obligation, was not pre-empted by federal law. Id. at 636.
existing state-court orders. The statute gives no hint that exercise of the Administrator’s
discretion may have this effect.” Id.
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.
Id. at 628.
The Supreme Court also rejected Rose’s contention that, because 38 U.S.C. § 3101(a)
exempted veterans’ disability benefits from being attached, levied, or seized, it “protect[ed] a
veteran’s disability benefits from seizure where the veteran invokes that provision to avoid an
otherwise valid order of child support.” Id. at 634.
3
The United States Supreme Court clarified that the Child Support Enforcement Act was
“designed to facilitate garnishment of federal funds where the intended recipient has failed to
satisfy a legal obligation of child support,” Rose, 481 U.S. at 634 and, specifically, found that
while 42 U.S.C. § 659(a) excluded veterans’ disability payments from garnishment or attachment
when the funds were “in the hands of the Administrator, . . . once these funds [were] delivered to
the veteran,” the state court could require that the veteran use them to satisfy a child support
order. Id. at 635.
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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).
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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 father’s argument that veterans’ disability benefits should be excluded from income
calculations when determining support obligations based on the referenced federal statutes.
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
4
In addition to 38 U.S.C. § 3101, 38 U.S.C. § 5301, and 42 U.S.C. § 659, father relied on
10 U.S.C. § 1408 to support his argument, and although 10 U.S.C § 1408 was not argued in
Rose, we find that it does not support his argument that his veterans’ disability benefits cannot be
considered by the state court to calculate child support. Father claims that under 10 U.S.C.
§ 1408 a portion of veterans’ disability pay can be counted towards a veteran’s child support
obligation only if the veteran is also a retiree, and waives retirement pay to receive disability pay.
See 10 U.S.C. §§ 1408(a)(2), (d)(1) and 42 U.S.C. §§ 659(h)(1)(A)(V)(ii) and (h)(1)(B)(iii).
That amount of disability pay that replaces the waived retired pay is still considered
remuneration for employment, i.e., income, and may therefore be considered as “income” for
purposes of a veteran’s support obligations. However, father contends that because he is not a
retired servicemember and is therefore not entitled to, nor is he a recipient of, military retired pay
that he may then waive to receive his disability pay, his disability benefits cannot be considered
income to determine child support under this statute. He cites no legal support for this
contention, and we have found none.
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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 Code § 20-108.2(C) to calculate father’s gross
income based on the income he received from all sources, including his veterans’ disability
benefits. See Oley, 63 Va. App. at 689-90; see also Niblett, 65 Va. App. at 625 (“The amount of
child support under the child support guidelines must be based on the parents’ actual gross
income.” (quoting West v. West, 53 Va. App. 125, 135 (2008))). “The court must consider the
basic needs of the child, the parent’s ability to pay, and to the extent that the parent is able to
provide more than the basic necessities of life, the degree to which the child should reasonably
share in his or her parents’ prosperity.” Niblett, 65 Va. App. at 625 (quoting Conway v.
Conway, 10 Va. App. 653, 658 (1990)). Finally, based on the evidence presented, the Virginia
statutory guidelines for determining child support, and the relevant case law, we find the circuit
court did not err in awarding mother $1,227 per month in child support. “[T]here is a rebuttable
presumption that the amount determined in accordance with the statutory guidelines, Code
§ 20-108.2, is the correct award.” Brooks v. Rogers, 18 Va. App. 585, 591 (1994).
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
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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
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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.
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