COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Raphael
UNPUBLISHED
Argued at Winchester, Virginia
DAO MINH LE
MEMORANDUM OPINION* BY
v. Record No. 0045-22-4 JUDGE CLIFFORD L. ATHEY, JR.
NOVEMBER 15, 2022
OANH NGUYEN LE
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Judith L. Wheat, Judge
John L. Bauserman, Jr., for appellant.
Dusty Sparrow Reed (Sparrow Reed PLLC, on brief), for appellee.
Dao Minh Le (“father”) appeals from an order of the Circuit Court of Arlington County
(“circuit court”) holding that he owed Oanh Nguyen Le (“mother”) $89,363 in child support
arrearages and awarding mother $24,525.01 in attorney fees and costs. Father contends that the
circuit court erred when it failed to credit him for nonconforming child support payments made
between August 2015 and January 2018 and when it awarded mother her attorney fees and costs.
Father also contends that the circuit court erred when ruling that mother, who had been ordered to
pay child support to father, would have no further child support obligation after the parties’ child
(the “child”) turned eighteen years old. We disagree, and affirm the decision of the circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND1
Father married mother on September 17, 2001, and one child was born during their
marriage.2 The parties separated after four years of marriage, and the Superior Court of Guam
entered a final decree for dissolution of marriage on December 22, 2005. That final decree
incorporated the parties’ marital settlement agreement (the “MSA”), under which mother was
awarded “full custody” of the child and was to care for the child “throughout the year,” while father
would “care for [the child] during the summer season as mutually agreed upon.” The MSA also
permitted the parties to modify its terms “by mutual consent” provided that such modification was
“in writing and executed with the same formality” as the MSA.
The MSA required father to pay mother $1,800 per month in child support beginning on
January 1, 2006, and continuing until the child “reaches the age of eighteen (18), marries, becomes
emancipated, becomes self-supporting, or dies, whichever occurs first.” The MSA also stated that
father’s child support payments “shall be increased annually consistent with the percentage of
increase in [his] salary from the previous year” and further required father to pay the entirety of
“all costs incident to providing each child with a private day school education through the
completion of the twelfth (12th) grade.” The MSA additionally provided in relevant part:
The parties agree that any costs, including but not limited to counsel
fees, court costs, investigation fees, and travel expense, incurred by a
party in the successful enforcement of the agreements, covenants, or
provisions of this Agreement, whether through litigation or other
action to compel compliance herewith, shall be borne by the
defaulting party. Any such costs incurred by a party in the successful
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues father has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
2
The child turned eighteen years old during the pendency of this case.
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defense to any action for enforcement of any of the agreements,
covenants, or provisions of this Agreement shall be borne by the
party seeking to enforce compliance.
Without mother’s consent, father unilaterally reduced his child support payments beginning
in 2009. Mother emailed father about the reduction, and, on December 14, 2009, father responded
to her email by stating that she had “three options,” which were to either “transfer [the child] to
[him],” “sue [him] in court,” or “adjust monthly payments.” On June 7, 2011, mother emailed
father again claiming that he had reduced his child support payments without her consent and
requested that father fully pay his child support obligations. In August 2015, father was living in the
United Arab Emirates (“UAE”) and was employed as a senior commercial officer by the United
States government. With mother’s consent, the child began living with father to attend school and
continued to live with father until January 31, 2018. Father failed to pay child support while the
child was living with him.
During trial, both parties introduced evidence regarding their respective incomes and
estimated amount of child support arrearages owed. Mother stipulated that the child lived with
father between August 2015 and January 2018 with her consent but maintained that “[s]he was the
primary custodian at the time.” Father subsequently stipulated that mother “had a legal right to
remove the child without his consent” from his care on January 31, 2018, to “assert her primary
custody rights.” Father also admitted that the custody and child support provisions stemming from
their final divorce decree were not modified until August 30, 2019, and that mother was current on
her child support payments.
The circuit court found that there had been a material change in circumstances warranting
modification of the parties’ child support obligations. As a result, mother’s presumptive child
support obligation was changed to $759 per month. The circuit court also denied father’s request
for credit for nonconforming child support payments, holding that $89,363 in arrearages was owed
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to mother. In doing so, the circuit court found that mother “did not relinquish custody of [the]
child” and that father “without consent, unilaterally stopped paying child support.” The circuit court
also awarded mother $24,525.01 in attorney fees and costs in accordance with the MSA and her fee
affidavit that she submitted after closing arguments.
The circuit court also denied father’s petition for a rule to show cause, stating:
No additional information has been provided to the [c]ourt that
[mother] is not current on any support payment. The minor child . . .
turns 18 on December 23, 2021, and [mother] will have no further
support obligation. Accordingly, the [c]ourt finds no basis to issue
the Rule requested by [father].
A final order was entered on December 9, 2021. This appeal followed.
II. ANALYSIS
A. Standard of Review
“The determination of child support is a matter of discretion for the circuit court, and
therefore we will not disturb its judgment on appeal unless plainly wrong or unsupported by the
evidence.” Da’mes v. Da’mes, 74 Va. App. 138, 144 (2022) (quoting Niblett v. Niblett, 65 Va. App.
616, 624 (2015)). “Whether a contract entitles the prevailing party to attorney fees is a question of
law that we review ‘de novo.’” Worsham v. Worsham, 74 Va. App. 151, 178 (2022) (quoting
Online Res. Corp. v. Lawlor, 285 Va. 40, 61 (2013)).
B. The End of Mother’s Support Obligation
Father contends that pursuant to Code § 20-124.2(C), the circuit court erred as a matter of
law when it held that mother’s duty to pay father child support terminated when the child turned
eighteen. However, since the juvenile and domestic relations district court (“JDR”), not the circuit
court, previously ordered the termination of the child support obligation when the child turned
eighteen, we do not address this assignment of error because the assigned error does not arise from a
final order of the circuit court in this case.
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For example, in the section of the final order entitled “[Father’s] Motion for a Rule to
Show Cause is Denied,” the circuit court merely confirms that mother had “made all payments
ordered by the JDR Court” and based on the JDR order when “[t]he minor child . . . turns 18 on
December 23, 2021, [mother] will have no further support obligation.” “[A]ccordingly, the
[circuit c]ourt has no basis to issue the Rule requested by [father].” In this context, the circuit
court’s recitation from the JDR order that mother’s child support obligation would end when the
child turned eighteen was simply part of its rationale for denying father’s petition for rule to
show cause; the error assigned by the father did not arise from the appealable final order before
this Court. This interpretation is consistent with the father’s contemporaneous objection to the
final order in this case, alleging that the circuit court “materially erred by dismissing [his] rule to
show cause on the basis of [the child] turning 18, thereby mooting [his] rule on this basis.”
On appeal, father asks this Court to correct the circuit court’s “erroneous statement of
law” and “declare[,] should [the child] continue to live with [him] after he reaches the age of
18[,] that the [m]other’s duty to pay child support will continue.” The issue of when mother’s
child support obligation would end, however, was neither presented nor ruled on by the circuit
court. Accordingly, we do not consider father’s argument on appeal. See Masika v.
Commonwealth, 63 Va. App. 330, 333 (2014) (“The Court of Appeals will not consider an
argument on appeal which was not presented to the trial court.” (quoting Ohree v. Commonwealth,
26 Va. App. 299, 308 (1998))); see also Ohree, 26 Va. App. at 308 (declining to review an issue
under Rule 5A:18 “because the trial court never ruled” and thus “there is no ruling for us to review
on appeal”).
C. Credit for Nonconforming Child Support Payments
Father further argues that the circuit court erred by failing to credit him $54,000 for
nonconforming child support payments he alleges were made between August 2015 and January
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2018, when the child lived with him because the parties had an “unequivocal, implied in fact
agreement . . . that the child would live with [him] indefinitely.” We disagree.
“Child support payments required under a valid court order become vested as they
accrue, and the court is without authority to make any change as to past due installments.”
Zedan v. Westheim, 60 Va. App. 556, 582 (2012) (quoting Commonwealth v. Skeens, 18
Va. App. 154, 158 (1994)). “However, although a court may not retroactively modify a child
support obligation, allowing a payor spouse credit for non-conforming support payments, in the
limited situations where permitted, is not a modification of the support order.” Id. (quoting
Skeens, 18 Va. App. at 158).
“This Court has established two exceptions to the statutory limitations on retroactive
modification of past due child support payments.” Jones v. Davis, 43 Va. App. 9, 14 (2004).
The first exception allows a credit for nonconforming child support payments when the
following two conditions are met: “(1) an agreement by the parties which modifies the terms or
method of payment; and (2) no adverse effect on the support award.” Zedan, 60 Va. App. at 582
(quoting Gallagher v. Gallagher, 35 Va. App. 470, 476 (2001) (en banc)). The second exception
allows a credit “where the custodial parent has agreed to relinquish custody on a permanent basis
to the other parent.” Id. at 582-83. Under this second exception, we held that enforcement of the
child support order would result in unjust enrichment and that “failure to enforce the letter of this
decree under these circumstances will not work to the detriment of the child.” Acree v. Acree, 2
Va. App. 151, 158 (1986). On appeal, father relies only upon the second, custody-based
exception allowing credit for nonconforming child support payments.
Notwithstanding that the circuit court found that mother “did not relinquish custody of
[the] child” and that father “without consent, unilaterally stopped paying child support,” father’s
arguments fail by his own admission that the alleged change in custody, however characterized,
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was not permanent. As we held in Gallagher, the exception father relies on applies only where
there has been a “total ‘relinquish[ment of] custody on a permanent basis.’” See Gallagher, 35
Va. App. at 477 (quoting Acree, 2 Va. App. at 157). We explained that “[to] permit modification
of a decree by the parties in a case in which the change in custody is less than complete will
invite ‘continuous trouble and turmoil,’ the exact difficulties the rule prohibiting credit for
non-conforming payments is designed to avoid.” Id. (quoting Henderlite v. Henderlite, 3
Va. App. 539, 542 (1987)).
Father attempts to avoid our holding in Gallagher by asking the Court to “make a good
faith extension of existing law” because “a contrary result would result in the [m]other’s unjust
enrichment and shock the conscience of the average person.” In support of his request, father
claims that he “in good faith fully performed his support responsibility, assumed primary
physical custody of [the child], and provided fully for [the child’s] support.” Consistent with our
prior cases, we decline father’s request to extend the law based on claims of unjust enrichment.
See Jones, 43 Va. App. at 16 (holding that, although “mother would be unjustly enriched in the
absence of awarding credits to father . . . the absence of . . . an agreement is fatal to father’s
claim for credits against child support arrearages”); see also Gallagher, 35 Va. App. at 478
(concluding that “[m]other’s unjust enrichment is an unfortunate by-product of our decision but,
standing alone, does not compel a different result”).
As the absence of an agreement granting father permanent custody of the child is fatal to
his claim for credit for nonconforming child support payments, we do not address father’s
argument that the circuit court failed to weigh equitable factors in denying such credit. See
Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (“As we have often said, ‘the doctrine of
judicial restraint dictates that we decide cases on the best and narrowest grounds available.’”
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(quoting Commonwealth v. White, 293 Va. 411, 419 (2017))). Accordingly, we affirm the circuit
court’s judgment denying father’s request for credit for nonconforming child support payments.
D. Attorney Fees
Father contends that the circuit court erred by awarding mother attorney fees and costs when
she failed to present evidence in support thereof, namely her affidavit of attorney fees, during her
case in chief. Father cites no law or authority in support of his argument that a party must present
an attorney fee affidavit before closing argument.
“Rule 5A:20(e) requires an appellant’s opening brief to contain the standard of review and
the argument, including applicable principles of law and authorities, in support of each of his
assignments of error; unsupported assertions of error do not merit appellate consideration.” Winters
v. Winters, 73 Va. App. 581, 597 (2021). “An appellant’s failure to strictly adhere to the
requirements of Rule 5A:20(e) permits this Court to treat an issue as waived.” Id. In this case, we
find that father’s lack of authority in support of his argument is significant and treat his assignment
of error as waived. See Sfreddo v. Sfreddo, 59 Va. App. 471, 494 (2012) (“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.” (quoting Fadness v. Fadness, 52 Va. App. 833, 851 (2008))).
E. Appellate Attorney Fees
Mother requests her attorney fees and costs incurred while defending this appeal. In this
case, the MSA provides as follows:
The parties agree that any costs, including but not limited to counsel
fees, court costs, investigation fees, and travel expense, incurred by a
party in the successful enforcement of the agreements, covenants, or
provisions of this Agreement, whether through litigation or other
action to compel compliance herewith, shall be borne by the
defaulting party. Any such costs incurred by a party in the successful
defense to any action for enforcement of any of the agreements,
covenants, or provisions of this Agreement shall be borne by the
party seeking to enforce compliance.
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We find that wife prevailed on appeal in enforcing her rights to child support and attorney
fees under the MSA. Accordingly, we grant mother’s request for appellate attorney fees and costs,
and remand to the circuit court to set a reasonable award of attorney fees and costs incurred by
mother during this appeal. Rule 5A:30(b).
III. CONCLUSION
For the foregoing reasons, we affirm and remand this case to the circuit court for
determination and award of the appropriate amount of appellate attorney fees, which also should
include any additional attorney fees incurred at the remand hearing.
Affirmed and remanded.
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