COURT OF APPEALS OF VIRGINIA
Present: Judges AtLee, Malveau x and Senior Judge Annunziata Argued at Fredericksburg, Virginia

ABDUL RAHMAN NASHNOUSH MEMORANDUM OPINION * BY v. Record No . 1768-16-4 JUDGE ROS EMARIE 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 Nashnous h appeals an order denying his motion to m odify support. Nashnoush argues that the circu it court erred by (1) refusing t o allow him to testi fy about his tax returns and the impact o f filing separately or jointly; (2) “ad mitting and/or givin g any weight to the expert witness’s testimony regar ding Mr. Nashnoush’s ability to immediately obtain phantom employment;” (3) violating his First Amendment right to free ex ercise of religion and “failing to recognize that Mr. Nashnoush has a right to choose employment t hat 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 mat ter before the trial court offered by Mr. Nashnoush.” We find no error , and affirm the decision of t he circuit court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND “When reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to the prevailing par ty, granting it the benefit of a ny reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted). The parties were divorced on Ma y 24, 2016. The final decree of divorce affirmed, ratified, and incorporated the parties’ agreement dated Ap ril 15, 2016. The agreement and final decree stated that Nashnoush would pay Yousef child support in the amo unt of $2,355 per month for twelve months beginning May 1, 2 016, $2,255 per m onth for twent y-four months beginning May 1, 2017, and then $2,237 per month “for as l ong as a child support obligation exists for three children, or until there is a material change in circumstances that resul ts in a further order of the Court.” The agreement and final decree also s tated that Nashnoush would pay Yousef spousal support in the amount of $6,645 per month for tw elve months beginning May 1, 2 016, $6,133 per month for twenty-four months beginning M ay 1, 2017, and $ 5,263 per month for thirty-six m onths beginning May 1, 2019. Both the agreement and the final decree included the following provision regarding the modifiability of s pousal 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- 3 - 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 file d a petition to mo dify child sup port and spousal support. In his petition, Nashnoush stated that he inf ormed his em ployer th at he could return to work on May 15, 2016, but woul d need reasonable accommodations. He further alleged that his employer “informed him that his services would no l onger be needed and t erminated his employment, through no fault of Nashnoush on May 9, 2 016.” In his petition, Nashno ush requested that the court reduce his support obligations. He al so 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 j ointly in 2014, but Y ousef refused to sign an amended 2014 ta x return, which “created a larger tax li ability than previously owed.” Yousef also refused to file a joint 2015 tax return, in contrav ention of the terms of the parties’ agreement. On October 20, 2016, the parties appeared before the circuit co urt. During the trial, Nashnoush was asked about the 2 014 and 2015 tax returns. He te stified that Yousef refused to sign the 2015 joint tax return, so he filed separately. Since Nashn oush did not offer into evidence the tax returns that he presented to Yous ef, the circuit court sustaine d the objection rega rding 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 wa s a debit or it was a credit’ i f he doesn’t have what he prepared to question that and to cross exam ine that. I’m not going to allo w him to testify to what it would have been.” Then, Nashnoush testified about h is employment. Prior to May 2 016, he was “vice-president and head of nati onal sales for [an] Islamic hom e finance provider.” In 2014,- 4 - Nashnoush earned $310,000, and in 2015, he earne d $325,000. He explained that on May 9, 2016, his employer offered him two choi ces. The first option was a s everance package, in which he could earn $170,000 but had to agree to a one year non-compete provis ion. His second option was accepting a job as an ar ea 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 sa lary.” Nashnoush refused both offers. Instead, he found a job as vice-president with a compe titor, 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 vocatio nal expert. The expert opined that Nashnoush was underemployed and that his earning capacity was a pproximately $240,000. After hearing the parties’ evidence and argument, the circuit c ourt found that there was a material change in circumstances, but that modification of chil d and spousal support was not warranted. The circuit court he ld that Nashnoush was voluntari ly underemployed. On October 20, 2016, the circuit court entered an order denying Nashnoush’s mo tion to modify support and awarded Yousef $19,742.98 for her attorney’s fees and costs. T his appeal followed.
ANALYSIS Assignments of error #1 and 5 In the first assignment of error, Nashnoush argues that the cir cuit court erred when it refused to allow him to testify about the 2014 and 2015 tax returns. I n the fifth assignment of error, Nashnoush argues that the circuit court abused its discretion b y considering evidence related to the divorce.- 5 - Rule 5A:20(e) mandates that a ppellant’s opening brief include “[t]he standard of review and the argument (including prin ciples 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 f ifth 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. Buch anan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Furthermore, this Court “will not sear ch the record for errors in order to interpret the appell ant’s contention and c orrect deficiencies i n a brief.” Id. Nor is it this Court’s “function to comb through the rec ord . . . in order to ferret-o ut 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 firstand fifth assignment s of error. See Fad ness 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 re ligion. Nashnoush endorsed the final order as “Seen and object ed to.” His counsel also wrote, “Objections: Court disregarded- 6 - 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 bas is for reversal unless an objection was stated with reasonabl e certainty at the time of t he ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of j ustice.” Rule 5A:18. We “will not consider an argum ent on appeal which was not pres ented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 48 8 (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. L ee, 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 co nsider the evidence presented by him. He asserts th at he offered into evidence cop ies of his current paystubs, which showed that he was earning the s ame base salary that he previou sly earned. He also testified about his employment situati on. He contends he was not underem ployed, as the expert witness opined, but had a comparable job w ith 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 w ithout evidence in the record t o support it.’” Furr v. Furr, 13

1 Nashnoush asks this Court to cons ider the third assignment of error pursuant to the ends of justice exception. C ontrary to Nashnoush’ s arguments, the e nds of justice exception does not apply because he has not proven that a miscarriage of justice o ccurred. See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).- 7 - Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwett er v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). “The moving party in a peti tion 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 achange in circumstances justifying a reduction in support, the payor “must establish th at he is not ‘voluntarily unemployed or voluntarily under em ployed.’” Antonelli v. Anton elli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991) (quoting Code § 20-108.1(B)(3)); see als o Hatloy v. Hatloy, 41 Va. App. 667, 672, 588 S.E.2d 389, 391 (2003). “Whether a person is vol untarily unemployed or underemployed is a factual determination.” Blackburn v. Michae l, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999). “Employing the most deferential standa rd of appellate review, we reverse factual findings ‘onl y if plainly wrong or not supporte d by credible evidence.’” Broadhead v. Broadhead, 51 Va. App. 170, 181, 655 S.E.2d 748, 7 53 (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 Nashnou sh was voluntarily underemployed. Contrary to Nash noush’s arguments, the circuit court considered his evidence. It noted that Nashnoush chose not t o accept a $170,000 severance p ackage from his previous employer, and instead, voluntarily took a job earning $120,000 per year. The circuit court stated, “And when you’re voluntarily undere mployed, the court is not go ing to reduce his income or his obligations that he agreed to in this calendar year, less than six months ago. The c ourt does not find that the modification is warranted.” Accordingly, the circuit court did not err in denying Nashnoush ’s motion to modify support.- 8 - CONCLUSION For the foregoing reasons, the circuit court’s ruling is affirm ed. Affirmed.