Alwan v. Alwan, Record No. 1711-18-4

Citation830 S.E.2d 45,70 Va.App. 599
Decision Date23 July 2019
Docket NumberRecord No. 1711-18-4
Parties Adel Elias ALWAN v. Aylin Tunc ALWAN, n/k/a Aylin Tunc
CourtCourt of Appeals of Virginia

Carson J. Tucker (William D. Wilkinson; Katherine Martell, Falls Church; LexFori, PLLC; First Point Law Group, P.C., on briefs), for appellant.

Walter C. Jacob, Leesburg, for appellee.

Present: Judges Petty, Malveaux and Senior Judge Annunziata


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 its rulings. This appeal followed.

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, 799 S.E.2d 696 (2017) (quoting Niblett v. Niblett, 65 Va. App. 616, 622, 779 S.E.2d 839 (2015) ).

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, 778 S.E.2d 535 (2015) (quoting Oley v. Branch, 63 Va. App. 681, 689, 762 S.E.2d 790 (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, 632 S.E.2d 607 (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, ––– U.S. ––––, 137 S. Ct. 1400, 197 L.Ed.2d 781 (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 ––––, 137 S. Ct. 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, ––– U.S. ––––, 139 S. Ct. 1894, 1900, ––– L.Ed.2d –––– (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, 722 S.E.2d 32 (2012), aff’d, 569 U.S. 483, 133 S.Ct. 1943, 186 L.Ed.2d 43 (2013). "The preemption of state laws represents ‘a serious intrusion into state sovereignty.’ " Virginia Uranium, Inc., ––– U.S. at ––––, 139 S. Ct. at 1904 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 488, 116 S.Ct. 2240, 2252, 135 L.Ed.2d 700 (1996) (plurality opinion)). Traditionally, "domestic relations is ... the domain of state law." Hillman v. Maretta, 569 U.S. 483, 490, 133 S.Ct. 1943, 1949–50, 186 L.Ed.2d 43 (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, 121 S.Ct. 1322, 149 L.Ed.2d 264 (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, 133 S.Ct. at 1949–50 (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (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, 133 S.Ct. at 1950 (quoting Ridgway v. Ridgway, 454 U.S. 46, 55, 102 S.Ct. 49, 55, 70 L.Ed.2d 39 (1981) ).

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, 107 S.Ct. 2029, 95 L.Ed.2d 599 (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, 107 S.Ct. at 2031–32. The Circuit Court for Washington County, Tennessee considered those benefits to calculate Rose’s child support obligations under ...

To continue reading

Request your trial
26 cases
  • In re Braunstein
    • United States
    • New Hampshire Supreme Court
    • 13 Febrero 2020
  • Dixon v. Dixon
    • United States
    • Virginia Court of Appeals
    • 31 Marzo 2020
    ...... for a determination thereof." Rule 5A:30(a), (b). Whether to award fees and costs is discretionary. See id.; Alwan v. Alwan, 70 Va. App. 599, 613, 830 S.E.2d 45 (2019). In determining whether to make such an award, the Court may consider factors including whether the requesting party ha......
  • In re M.E.R-L.
    • United States
    • Colorado Court of Appeals
    • 17 Diciembre 2020
    ..., 11 Pa. D. & C.4th 343, 347 (Ct. C.P. 1991) ; Youngbluth v. Youngbluth , 188 Vt. 53, 6 A.3d 677, 687 n.3 (2010) ; Alwan v. Alwan , 70 Va.App. 599, 830 S.E.2d 45, 51 (2019).¶ 26 Father also argues that Rose is inapplicable because the obligor in that case relied on three provisions related ......
  • In re Parental Responsibilities Concerning M.E.R-L.
    • United States
    • Colorado Court of Appeals
    • 17 Diciembre 2020
    ...Wingard v. Wingard, 11 Pa. D. & C.4th 343, 347 (Ct. C.P. 1991); Youngbluth v. Youngbluth, 6 A.3d 677, 687 n.3 (Vt. 2010); Alwan v. Alwan, 830 S.E.2d 45, 51 (Va. Ct. App. 2019).¶ 26 Father also argues that Rose is inapplicable because the obligor in that case relied on three provisions relat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT