COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Cl ements 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 LYNOR E MARVIN

FROM THE CIRCUIT C OURT OF HANOVER COUNTY George Mason, III, Judge (Brian Maurice Marvin, pro se , on briefs). Appe llant 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 er red 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 “a ll reasonable inferences fairly deducible

1 Because the referenced amount of attorneys’ fees originally awarded pursuant to the September 22, 2006 order conflicts w ith the amount in the trial court’s fi nal order entered on May 10, 2007, we remand this case to the trial co urt for the limited purpose of correcting this apparent clerical error in the final order if appropriate. See Code § 8.01-428(B).- 2 - 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 Octobe r 14, 2004. Pursuant to the final decree of divorce, mother was granted sole legal and primar y physical custody of the parties’ minor child. On January 20, 2005, the trial court entered an ame nded order of child visitation by agreement. Subsequently, mother filed a petition for rein statement asking that the trial court order father to show cause why he shoul d not be held in contempt for vi olations of the amended order. In an affidavit filed with the petition, mother averre d that father had told he r 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 fa ther, 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 mi ss a day of school. Mother’s petition also requested an award of attorneys’ fees she had in curred 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 violat ing 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 c ourt 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 w ould be incarcerated, and reaffirmed its order that father pay mother’s attorneys’ fees.- 3 - 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 mo ther as a creditor to whom he owed the attorneys’ fees awarded pursuan t to the trial court’s orders. At the December 7, 2006 hearing, the trial court asked that the parties brief the is sues 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 bankr uptcy and continued the matter until May 10, 2007. On March 12, 2007, the bankruptcy court gran ted father a discharge pursuant to 11 U.S.C. § 727. The reverse side of the bankrupt cy court form issuing the discharge, entitled “Explanation of Bankruptcy Discharge in a Chap ter 7 Case,” containe d a subsection entitled “Debts that are Not Discharged.” Within th at subsection, “debts th at are domestic support obligations” were deemed not discharged. On May 10, 2007, the trial court reaffirmed that father was in contem pt, ordered that he pay mother’s previously awarded attorney s’ fees, and further ordered, as follows: That the debt herein of [fat her] 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 [fa ther] 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 jurisdic tion through its police powers to enforce its orders entered by the Court. This appeal followed.- 4 - II. ANALYSIS Father contends that the trial court erre d 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 gene rally that the trial court “lacked jurisdiction to enter the May 10, 2007 Order.” It is well esta blished, 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 clai m that the trial court had no aut hority 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 fe es incurred by an aggrie ved party incident to contempt proceedings instituted and conducted to obt ain 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,- 5 - 752-53, 536 S.E.2d 925, 930 (2000). We conclude, theref ore, that the trial court had jurisdiction to enter the May 10, 2007 order. “A debtor may obtain a general discharge unde r 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 oblig ation” as debt that is (1) owed to or recoverable by the parent of a child of the debtor, (2) in the nature of supp ort of the child or the child’s parent, even if not expr essly so designated, (3) establishe d in a court order, and (4) not assigned to a nongovernmental entity, unless the obligation is assigne d voluntarily by the ch ild’s parent. cond

re the nature of suppor t of the child or the child’s pa rent, even if not expressly so designa al In this case, father challenges only whether th e 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 fath er’s violations of the child visitation order a considered “in ted.” “‘Whether a debt is a support obligation, and no t 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 Cons umer Protection Act (BAPCPA), effective October 17, 2005, replaced the lengthy text of form er 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 de bt fits within the definition of a “domestic support obligation.”- 6 - “[M]ost courts hold that fees ‘inextricably intertwined w ith 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 determinatio n 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 Jone s) , 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 oblig ation 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 cust ody litigation exempt from discharge); Dellapa v. Vazquez (In re Vazquez) , 92 B.R. 533, 535 (Bankr. S.D. Fla. 1988) (a ttorney’s fees incurred in litigation pertaining to visitation, custody, contempt, and child support nondischargeable); ro York v. Cast (In re Castro) , 74 B.R. 38, 40 (Bankr. M.D. Fla. 1987) (a ttorney’s fees and litigation expenses relating to debtor’s abduction of child and de nial of visitation right s held nondischargeabl e); 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 vi olated custody order held nondischargeable). Here, mother’s petition for reinstatement sought contempt findings in conjunction wi award of attorneys’ fees against father for his vi olations of the child visitation order. In the th an- 7 - ng the t the

and the trial court’s resolution of the matter dealt ex

estic support obligation” pursua nt 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 av erred that on two occasions, father had delayed returning the minor child to he r for over a day without her cons ent or without communicati visit’s extension to her. In one of those instan ces, the child missed a whol e 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, ul timately reaffirming its prior orders, making clear that the attorneys’ fees were debt “in th e nature of custody, visi tation, and support of the minor child,” and exempted the fees from discharg e 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 s eeking and awarding relief from father’s violations of the child visitation terms. Under these circumstances, we agree with the tr ial court that the attorneys’ fees were “in the nature of support of the child” and, thus, fit with in the second criteria contained in the definition of “dom urt did not err in exempting the fees fr om bankruptcy discharge pursuant to 11 U.S.C. § 523(a)(5). Father further contends that the trial court’ s order violated the ba nkruptcy 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- 8 - trial

the attorneys’ fees we re not debt discharged in bankrupt cy, 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 co llateral 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 dischargeab le 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 debt or’s personal liability from debts discharged and 11 U.S.C. § 524(a)(2) en joins the commencement or continuation of an action to collect any debt discharged.