Abdul Rahman Nashnoush v. Asma Yousef ( 2017 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges AtLee, Malveaux and Senior Judge Annunziata
Argued at Fredericksburg, Virginia
ABDUL RAHMAN NASHNOUSH
MEMORANDUM OPINION* BY
v. Record No. 1768-16-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 1, 2017
ASMA YOUSEF
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Grace Burke Carroll, Judge
Ronald L. Hiss for appellant.
No brief or argument for appellee.
Abdul Rahman Nashnoush appeals an order denying his motion to modify support.
Nashnoush argues that the circuit court erred by (1) refusing to allow him to testify about his tax
returns and the impact of filing separately or jointly; (2) “admitting and/or giving any weight to the
expert witness’s testimony regarding Mr. Nashnoush’s ability to immediately obtain phantom
employment;” (3) violating his First Amendment right to free exercise of religion and “failing to
recognize that Mr. Nashnoush has a right to choose employment that does not violate his religious
beliefs;” (4) failing to consider evidence provided by him; and (5) “considering the argument,
without any supporting evidence, offered by Ms. Yousef from the mediation of the final divorce,
rather than considering the only evidence pertaining to the matter before the trial court offered by
Mr. Nashnoush.” We find no error, and affirm the decision of the circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“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.” Congdon v.
Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).
The parties were divorced on May 24, 2016. The final decree of divorce affirmed, ratified,
and incorporated the parties’ agreement dated April 15, 2016. The agreement and final decree
stated that Nashnoush would pay Yousef child support in the amount of $2,355 per month for
twelve months beginning May 1, 2016, $2,255 per month for twenty-four months beginning May 1,
2017, and then $2,237 per month “for as long as a child support obligation exists for three children,
or until there is a material change in circumstances that results in a further order of the Court.” The
agreement and final decree also stated that Nashnoush would pay Yousef spousal support in the
amount of $6,645 per month for twelve months beginning May 1, 2016, $6,133 per month for
twenty-four months beginning May 1, 2017, and $5,263 per month for thirty-six months beginning
May 1, 2019. Both the agreement and the final decree included the following provision regarding
the modifiability of spousal support:
The parties jointly acknowledge that Husband suffered a
stroke in February 2016 and is currently in rehabilitation. Husband
was placed on short term disability beginning April 1, 2016, and
will be receiving a maximum of 60% of his income for the
duration of the disability benefit. Husband anticipates returning to
full time employment in May 2016; however, his inability to do
so shall be considered a material change in circumstance and the
court shall have the authority to hold an evidentiary hearing to
review the change and make any adjustments it deems appropriate
retroactive to the date he provided Wife with written notice of the
inability to return to regular employment. The parties agree to
work cooperatively with one another to determine the support
amount that shall be payable during the period of disability and in
the event the parties are unable to resolve the dispute, either
party may petition the Court for a determination. Support shall
nevertheless be paid for the period of disability provided a court
hearing is held within two months of written notice. In the event
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the parties are in court on a motion to modify spousal support as a
result of this disability, the prevailing party shall be compensated
for his/her attorneys’ fees incurred on the issue by the other
party.
Support shall otherwise be modifiable upon any material
change in circumstances.
On June 6, 2016, Nashnoush filed a petition to modify child support and spousal support. In
his petition, Nashnoush stated that he informed his employer that he could return to work on May
15, 2016, but would need reasonable accommodations. He further alleged that his employer
“informed him that his services would no longer be needed and terminated his employment, through
no fault of Nashnoush on May 9, 2016.” In his petition, Nashnoush requested that the court reduce
his support obligations. He also asked the court to award him one-half of the tax liability he paid for
the 2014 and 2015 taxes. He explained that the parties filed jointly in 2014, but Yousef refused to
sign an amended 2014 tax return, which “created a larger tax liability than previously owed.”
Yousef also refused to file a joint 2015 tax return, in contravention of the terms of the parties’
agreement.
On October 20, 2016, the parties appeared before the circuit court. During the trial,
Nashnoush was asked about the 2014 and 2015 tax returns. He testified that Yousef refused to sign
the 2015 joint tax return, so he filed separately. Since Nashnoush did not offer into evidence the tax
returns that he presented to Yousef, the circuit court sustained the objection regarding his testimony
about what the joint tax returns would have shown. The circuit court stated, “He can’t just say,
‘Hey, I figured it out and it was a debit or it was a credit’ if he doesn’t have what he prepared to
question that and to cross examine that. I’m not going to allow him to testify to what it would have
been.”
Then, Nashnoush testified about his employment. Prior to May 2016, he was
“vice-president and head of national sales for [an] Islamic home finance provider.” In 2014,
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Nashnoush earned $310,000, and in 2015, he earned $325,000. He explained that on May 9, 2016,
his employer offered him two choices. The first option was a severance package, in which he could
earn $170,000 but had to agree to a one year non-compete provision. His second option was
accepting a job as an area manager in Kentucky, where he would earn the same salary as his current
salary for one year and then he would earn the “Area Manager salary.” Nashnoush refused both
offers. Instead, he found a job as vice-president with a competitor, with whom he is earning a base
salary of $120,000 per year. He testified that he expected to start earning bonuses in late 2018 or
early 2019.
At the conclusion of Nashnoush’s evidence, Yousef made a motion to strike, which the
circuit court denied. Yousef presented evidence from a vocational expert. The expert opined that
Nashnoush was underemployed and that his earning capacity was approximately $240,000.
After hearing the parties’ evidence and argument, the circuit court found that there was a
material change in circumstances, but that modification of child and spousal support was not
warranted. The circuit court held that Nashnoush was voluntarily underemployed. On October 20,
2016, the circuit court entered an order denying Nashnoush’s motion to modify support and
awarded Yousef $19,742.98 for her attorney’s fees and costs. This appeal followed.
ANALYSIS
Assignments of error #1 and 5
In the first assignment of error, Nashnoush argues that the circuit court erred when it refused
to allow him to testify about the 2014 and 2015 tax returns. In the fifth assignment of error,
Nashnoush argues that the circuit court abused its discretion by considering evidence related to the
divorce.
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Rule 5A:20(e) mandates that 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.”
Nashnoush 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 arguments
relating to the first and fifth assignments of error.
Nashnoush has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Furthermore, this Court “will not search the record for errors in order to
interpret the appellant’s contention and correct deficiencies in a brief.” Id. Nor is it this Court’s
“function to comb through the record . . . in order to ferret-out for ourselves the validity of
[appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988)
(en banc).
We find that Nashnoush’s failure to comply with Rule 5A:20(e) is significant, so we will
not consider the first and fifth assignments of error. See Fadness v. Fadness, 52 Va. App. 833,
851, 667 S.E.2d 857, 866 (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, 666 S.E.2d 547, 548 (2008).
Assignments of error #2 and 3
Nashnoush argues that the circuit court erred by accepting the vocational expert’s opinion
and violating his First Amendment rights to free exercise of religion. Nashnoush endorsed the
final order as “Seen and objected to.” His counsel also wrote, “Objections: Court disregarded
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the evidence of the change of circumstances.” Nashnoush raises the arguments in the second and
third assignments of error for the first time on appeal.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
We “will not consider an argument on appeal which was not presented to the trial court.”
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of
Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its
attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Accordingly, we will not consider the arguments in the second and third assignments of
error.1
Assignment of error #4
Nashnoush argues that the circuit court erred by failing to consider the evidence
presented by him. He asserts that he offered into evidence copies of his current paystubs, which
showed that he was earning the same base salary that he previously earned. He also testified
about his employment situation. He contends he was not underemployed, as the expert witness
opined, but had a comparable job with the same base salary and “the potential to make a similar
income to what he had lost within 18 months.”
“We will not disturb the trial court’s decision where it is based on an ore tenus hearing,
unless it is ‘plainly wrong or without evidence in the record to support it.’” Furr v. Furr, 13
1
Nashnoush asks this Court to consider the third assignment of error pursuant to the ends
of justice exception. Contrary to Nashnoush’s arguments, the ends of justice exception does not
apply because he has not proven that a miscarriage of justice occurred. See Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
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Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App.
601, 605, 383 S.E.2d 28, 30 (1989)).
“The moving party in a petition for modification of support is required to prove both a
material change in circumstances and that this change warrants a modification of support.”
Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30. To prove a change in circumstances
justifying a reduction in support, the payor “must establish that he is not ‘voluntarily
unemployed or voluntarily under employed.’” Antonelli v. Antonelli, 242 Va. 152, 154, 409
S.E.2d 117, 119 (1991) (quoting Code § 20-108.1(B)(3)); see also Hatloy v. Hatloy, 41 Va. App.
667, 672, 588 S.E.2d 389, 391 (2003). “Whether a person is voluntarily unemployed or
underemployed is a factual determination.” Blackburn v. Michael, 30 Va. App. 95, 102, 515
S.E.2d 780, 784 (1999). “Employing the most deferential standard of appellate review, we
reverse factual findings ‘only if plainly wrong or not supported by credible evidence.’”
Broadhead v. Broadhead, 51 Va. App. 170, 181, 655 S.E.2d 748, 753 (2008) (quoting Budnick v.
Budnick, 42 Va. App. 823, 841, 595 S.E.2d 50, 59 (2004)).
The evidence supports the circuit court’s findings that Nashnoush was voluntarily
underemployed. Contrary to Nashnoush’s arguments, the circuit court considered his evidence. It
noted that Nashnoush chose not to accept a $170,000 severance package from his previous
employer, and instead, voluntarily took a job earning $120,000 per year. The circuit court stated,
“And when you’re voluntarily underemployed, the court is not going to reduce his income or his
obligations that he agreed to in this calendar year, less than six months ago. The court does not find
that the modification is warranted.”
Accordingly, the circuit court did not err in denying Nashnoush’s motion to modify support.
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CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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