COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Clements and Beales 

Argued at Richmond, Virginia 

BRIAN MAURICE MARVIN 

 OPINION BY 

v. Record No. 1323-07-2 JUDGE JEAN HARRISON CLEMENTS 

APRIL 22, 2008 

VICKIE LYNORE MARVIN 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

George Mason, III, Judge 

 (Brian Maurice Marvin, pro se, on briefs). Appellant submitting on 

briefs. 

 Robert A. Canfield (Paul McCourt Curley; Frank G. Uvanni; 

Canfield, Baer, Heller & Johnston, LLP; Uvanni & Associates, P.C., 

on brief), for appellee. 

Brian Maurice Marvin (father) appeals from a decision of the trial court finding that his 

obligation to pay attorneys’ fees to Vickie Lynore Marvin (mother) was not discharged in 

bankruptcy. On appeal, father claims that the trial court erred by exempting the debt from 

bankruptcy discharge under 11 U.S.C. § 523(a)(5). For the following reasons, we affirm the trial 

court’s judgment and remand.1

I. BACKGROUND 

On appeal, we view the evidence in the “light most favorable” to the prevailing party in 

the trial court and grant to that party the benefit of “all reasonable inferences fairly deducible 

 1

 Because the referenced amount of attorneys’ fees originally awarded pursuant to the 

September 22, 2006 order conflicts with the amount in the trial court’s final order entered on 

May 10, 2007, we remand this case to the trial court for the limited purpose of correcting this 

apparent clerical error in the final order if appropriate. See Code § 8.01-428(B). 
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therefrom.” Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 

460, 463 (1991). 

Mother and father were divorced on October 14, 2004. Pursuant to the final decree of 

divorce, mother was granted sole legal and primary physical custody of the parties’ minor child. 

On January 20, 2005, the trial court entered an amended order of child visitation by agreement. 

Subsequently, mother filed a petition for reinstatement asking that the trial court order 

father to show cause why he should not be held in contempt for violations of the amended order. 

In an affidavit filed with the petition, mother averred that father had told her that the terms of the 

amended order did not apply to him. Mother further averred that on December 28, 2005, father 

failed to return the minor child to mother at the time, date, and place set forth in the amended 

order. Despite mother’s attempts to contact father, father remained out of touch with mother, 

neglected to obtain her consent to extend the visit, and returned the minor child a day late. On 

May 29, 2006, father again failed to contact mother or obtain her permission to extend the visit, 

and returned the minor child a day late causing the child to miss a day of school. Mother’s 

petition also requested an award of attorneys’ fees she had incurred in pursuing the contempt 

action for violations of the visitation order. 

 On September 22, 2006, having conducted a hearing on mother’s petition for which 

father did not appear, the trial court found father in contempt, ordered him to show cause why he 

should not be imprisoned for contempt for violating the amended visitation order, and also 

ordered that he pay mother’s attorneys’ fees in “the amount of $3,330.00.” A show cause 

hearing was set for October 16, 2006. At that hearing, the trial court overruled father’s motions 

and objections to the issuance of the rule to show cause and to the contempt finding, found that if 

father further violated any previous orders of the trial court, he would be incarcerated, and 

reaffirmed its order that father pay mother’s attorneys’ fees. 
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 When father failed to timely pay mother’s attorneys’ fees, the trial court scheduled 

another hearing on December 7, 2006. Father, however, filed a bankruptcy petition on 

December 6, 2006. In his petition, he designated mother as a creditor to whom he owed the 

attorneys’ fees awarded pursuant to the trial court’s orders. At the December 7, 2006 hearing, 

the trial court asked that the parties brief the issues presented by father’s bankruptcy petition and 

continued the matter. At a hearing on January 25, 2007, the trial court stayed its contempt 

proceedings until the close of father’s bankruptcy and continued the matter until May 10, 2007. 

 On March 12, 2007, the bankruptcy court granted father a discharge pursuant to 11 

U.S.C. § 727. The reverse side of the bankruptcy court form issuing the discharge, entitled 

“Explanation of Bankruptcy Discharge in a Chapter 7 Case,” contained a subsection entitled 

“Debts that are Not Discharged.” Within that subsection, “debts that are domestic support 

obligations” were deemed not discharged. 

 On May 10, 2007, the trial court reaffirmed that father was in contempt, ordered that he 

pay mother’s previously awarded attorneys’ fees, and further ordered, as follows: 

That the debt herein of [father] is not discharged by 11 

U.S.C. [§ ]727 as the debt is in the nature of custody, visitation and 

support of the minor child and [father] is in violation of the 

following orders of this Court, namely: 

a. the Order entered on January 2[0], 2005; 

b. the Order entered on September 22, 2006; 

c. the Order entered on October 18, 2006; and, 

d. the Final Decree in this matter. 

The Court hereby further finds: 

 That the debt owed herein by [father] in the amount of 

$3,300.00 is excepted from discharge pursuant to 11 U.S.C. 

[§ ]523(a)(5). That the bankruptcy case has been closed and that 

this Court retains its jurisdiction through its police powers to 

enforce its orders entered by the Court. 

 This appeal followed. 
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II. ANALYSIS 

Father contends that the trial court erred by exempting the attorneys’ fees from 

bankruptcy discharge. To support that contention, he claims that the debt was “for a contempt 

violation of a visitation order” and that the order was “clearly not for [s]upport or [a]limony.” 

Thus, he argues that the debt does not qualify as a “domestic support obligation” exception to 

discharge pursuant to 11 U.S.C. § 523(a)(5). We disagree with father. 

While “we review the trial court’s application of the law to [the facts of a case] de novo,” 

the trial court’s “factual findings will not be disturbed on appeal unless they are plainly wrong or 

without evidence to support them.” Collins v. First Union Nat’l Bank, 272 Va. 744, 749, 636 

S.E.2d 442, 446 (2006). 

As a preliminary matter, father contends generally that the trial court “lacked jurisdiction 

to enter the May 10, 2007 Order.” It is well established, however, that “[b]ankruptcy courts and 

state courts maintain concurrent jurisdiction to decide . . . exceptions to discharge arising under 

[11 U.S.C. §] 523(a), including [11 U.S.C. §] 523(a)(5).” Monsour v. Monsour (In re Monsour), 

372 B.R. 272, 278 (Bankr. W.D. Va. 2007); see also In re Carter, 156 B.R. 768, 772 (Bankr. E.D. 

Va. 1993); Brogan v. Brogan, 31 Va. App. 769, 775, 525 S.E.2d 618, 621 (2000); Douglas v. 

Douglas, 17 Va. App. 380, 382, 437 S.E.2d 244, 245-46 (1993). To the extent that father’s 

contention can be read as a claim that the trial court had no authority to award attorneys’ fees 

incident to a contempt proceeding for violations of a child visitation order, it is equally well 

established that in cases “where the custody of a child, or child support, is involved,” a court 

“has the discretionary power to award counsel fees incurred by an aggrieved party incident to 

contempt proceedings instituted and conducted to obtain enforcement of an order of the court.” 

Carswell v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982); see also Edwards v. 

Lowry, 232 Va. 110, 114, 348 S.E.2d 259, 262 (1986); Sullivan v. Sullivan, 33 Va. App. 743, 
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752-53, 536 S.E.2d 925, 930 (2000). We conclude, therefore, that the trial court had jurisdiction 

to enter the May 10, 2007 order. 

“A debtor may obtain a general discharge under Chapter 7 of the Bankruptcy Code from 

‘all debts that arose before the date of the order for relief.’” Bell v. Bell (In re Bell), 357 B.R. 

167, 171 (Bankr. M.D. Ala. 2006) (quoting 11 U.S.C. § 727(b)). Pursuant to 11 U.S.C. 

§ 523(a)(5), however, “domestic support obligation[s]” are exempted from discharge.2

 11 

U.S.C. § 101(14A) defines “domestic support obligation” as debt that is (1) owed to or 

recoverable by the parent of a child of the debtor, (2) in the nature of support of the child or the 

child’s parent, even if not expressly so designated, (3) established in a court order, and (4) not

assigned to a nongovernmental entity, unless the obligation is assigned voluntarily by the child’s 

parent. 

cond 

re 

 the nature of support of the child or the child’s parent, even if not expressly so 

designa

al 

In this case, father challenges only whether the debt he owes mother satisfies the se

criteria contained in 11 U.S.C. § 101(14A), that is, whether the attorneys’ fees awarded to 

mother in a contempt proceeding arising out of father’s violations of the child visitation order a

considered “in

ted.” 

“‘Whether a debt is a support obligation, and not dischargeable . . . is a matter of feder

law.’” Taylor v. Taylor, 27 Va. App. 209, 218 n.5, 497 S.E.2d 916, 920 n.5 (1998) (quoting 

Mosley v. Mosley, 19 Va. App 192, 196, 450 S.E.2d 161, 164 (1994)). 

 2

 The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), effective 

October 17, 2005, replaced the lengthy text of former 11 U.S.C. § 523(a)(5) with the simple 

phrase “domestic support obligation” and provided a corresponding definition for that phrase in 

11 U.S.C. § 101(14A). Because the language of the former 11 U.S.C. § 523(a)(5) and new 

definition in 11 U.S.C. § 101(14A) are similar, the pre-BAPCPA case law applicable to 11 

U.S.C. § 523(a)(5) is relevant and persuasive in determining if a debt fits within the definition of 

a “domestic support obligation.” 
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“[M]ost courts hold that fees ‘inextricably intertwined with proceedings affecting

welfare of the child,’ such as custody and visitation, should be deemed support.” 

 the 

Wedgle &

Shpall v. Ray (In re Ray), 143 B.R. 937, 940 (Bankr. D. Colo. 1992) (quoting Peters v. 

Hennenhoeffer (In re Peters), 133 B.R. 291, 295 (Bankr. S.D.N.Y. 1991)). Indeed, “[t]he 

majority of courts have held that a determination of child custody or visitation is a vital

of ‘support’ and, therefore, that an ancillary award of attorney’s fees in connection with a 

custody or visitation dispute is in the ‘nature of support.’” 

 element 

Spear v. Constantine (In re 

Constantine), 183 B.R. 335, 336 (Bankr. D. Mass. 1995); see also Jones v. Jones (In re Jones), 9 

F.3d 878, 882 (10th Cir. 1993) (“[C]ourt-ordered attorney’s fees arising from post-divorce 

custody actions are deemed in the nature of support under [11 U.S.C. §] 523(a)(5) as being 

incurred on behalf of the child.”); Bell, 357 B.R. at 174 (attorney’s fees awarded in litigation to 

enforce, in part, a child support obligation are in the nature of support); Hayden v. Farrell (In re 

Farrell), 133 B.R. 145, 148 (Bankr. S.D. Ind. 1991) (attorney’s fees imposed, in part, to pu

debtor for disobeying court order in proceeding to compel return of child held 

nondischargeable); 

nish 

Holtz v. Poe (In re Poe), 118 B.R. 809, 812 (Bankr. N.D. Okla. 1990) 

(attorney’s fees incurred in child custody litigation exempt from discharge); Dellapa v. Vazquez 

(In re Vazquez), 92 B.R. 533, 535 (Bankr. S.D. Fla. 1988) (attorney’s fees incurred in litigation

pertaining to visitation, custody, contempt, and child support nondischargeable); York v. Castro 

(In re Castro), 74 B.R. 38, 40 (Bankr. M.D. Fla. 1987) (attorney’s fees and litigation expenses 

relating to debtor’s abduction of child and denial of visitation rights held nondischargeable); 

Hicks v. Hicks (In re Hicks), 65 B.R. 227, 229 (Bankr. D.N.M. 1986) (attorney’s fees awarded in 

dispute to recover child from debtor who violated custody order held nondischargeable). 

Here, mother’s petition for reinstatement sought contempt findings in conjunction wi

award of attorneys’ fees against father for his violations of the child visitation order. In the 

th an 
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ng the 

t the 

 and the trial court’s resolution of the matter 

dealt ex

estic support obligation” pursuant to 11 U.S.C. § 101(14A). Accordingly, the 

trial co

and 11 U.S.C. §§ 727, 524(a)(1), and 524(a)(2).3

 Father also asserts that mother and mother’s 

 

affidavit filed with mother’s petition, she averred that on two occasions, father had delayed 

returning the minor child to her for over a day without her consent or without communicati

visit’s extension to her. In one of those instances, the child missed a whole day of school. A

September 22, 2006 hearing on mother’s petition, the trial court found father in contempt, 

ordered him to show cause why he should not be imprisoned for contempt for violating the 

amended visitation order, and also ordered that he pay mother’s attorneys’ fees. The trial court

conducted subsequent hearings on the matter, ultimately reaffirming its prior orders, making 

clear that the attorneys’ fees were debt “in the nature of custody, visitation, and support of the

minor child,” and exempted the fees from discharge in bankruptcy. It is clear, therefore, that 

mother’s petition and request for attorneys’ fees

clusively with the welfare of the parties’ minor child by seeking and awarding relief from

father’s violations of the child visitation terms. 

Under these circumstances, we agree with the trial court that the attorneys’ fees were “in 

the nature of support of the child” and, thus, fit within the second criteria contained in the 

definition of “dom

urt did not err in exempting the fees from bankruptcy discharge pursuant to 11 U.S.C. 

§ 523(a)(5). 

Father further contends that the trial court’s order violated the bankruptcy court’s order 

 

S.C. § 727(b) provides, in relevant part, as follows: 3 11 U.

xcept as provided in section 523 of this title [11 USCS § 

 . . . . 

E

523], a discharge under subsection (a) of this section discharges 

the debtor from all debts that arose before the date of the order for 

relief under this chapter
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 trial 

the attorneys’ fees were not debt discharged in bankruptcy, father’s additional claims 

lack merit. 

For these reasons, we affirm the trial court’s judgment and reman

Affirmed and remanded.

attorneys violated the bankruptcy court’s injunction by conducting a collateral attack in the

court. The validity of father’s contentions, however, is contingent upon our resolution of 

whether the debt he owed mother was a dischargeable debt. Because we affirm the trial court’s 

finding that 

III. CONCLUSION 

d. 

 

In addition, 11 U.S.C. § 524(a)(1) voids any judgment of the debtor’s personal liability from 

debts discharged and 11 U.S.C. § 524(a)(2) enjoins the commencement or continuation of an 

action to collect any debt discharged.