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Alwan v. Alwan

Court of Appeals of Virginia

July 23, 2019



          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.

          Present: Judges Petty, Malveaux and Senior Judge Annunziata Argued at Alexandria, Virginia



         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.


         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.

         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 ...

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