A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your divorce lawyers should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Custody award was supported by evidence
By Virginia Lawyers Weekly – 9/28/2025
Where the circuit court properly considered the statutory factors based on the evidence presented, and found that awarding wife primary custody was in the children’s best interest, that decision was affirmed.
Background
Huy Le appeals the circuit court’s final order of divorce.
Jurisdiction
Husband contends that the circuit court erred by “assuming subject matter jurisdiction without proper evidence or investigation” of wife’s “suspected” bigamy. He emphasizes that wife’s original complaint for divorce alleged that M.P. was her child from a “previous marriage” and that the attorney who filed her amended complaint withdrew due to “[p]rofessional and ethical considerations.”
However wife’s amended complaint substituted her original complaint. Therefore, the original complaint husband primarily relies on was, in effect, never filed. Regardless, wife’s mother testified that wife had not been married previously, and husband conceded that the parties could “move forward” based on her testimony. As such, there is no evidence that shows that the wife was either married previously or had failed to obtain a divorce from a previous marriage.
Children
The circuit court expressly considered each of the statutory factors before awarding wife primary custody of the children. It found, among other things, that wife was able to assess and meet the children’s physical, emotional and intellectual needs. By contrast, the circuit court was dubious about husband’s ability to do so and his “disturbing pattern of discipline.”
Similarly, the circuit court recognized that husband took the children to “activities,” but it found that he did so infrequently. In sum, the circuit court properly considered the statutory factors based on the evidence presented and found that awarding wife primary custody was in the children’s best interest.
Husband asserts that the circuit court nevertheless erred by equally dividing the responsibility for transporting the children between the parties. He argues that wife’s relocation to Fairfax was not in the children’s best interest and that “it would have been more equitable for [wife] to be responsible for the transportation.”
But “when a trial court evaluates relocation for the first time in the initial custody order, it need only consider the best interests of the children, which is the test regularly used to determine custody.” As stated above, the circuit court properly considered the statutory factors and found that ordering the parties to share the responsibility of transporting the children to be in their best interest.
Health insurance
Husband contends for the first time on appeal that the circuit court erred by failing to order wife to provide health insurance for the children. Though he did not preserve his argument below, he asks that this court consider it under the ends of justice exception to Rule 5A:18 based on “the facts and circumstances of the case.”
Code § 20-60.3(8)(a) required the circuit court to order wife to provide health care coverage for the children. By failing to order wife to provide health insurance to the children, the circuit court’s final order allows her to discontinue the children’s health insurance policy to their detriment and an improper windfall to herself.
More importantly, the order in its present form, although providing for the cost of health care, does not mandate its existence nor contain incentives to keep health care coverage for the children, allowing the parties to drop coverage for the children without any notice and without any repercussions.
Mortgage
The related bank statements do not show that husband used separate funds to pay the parties’ mortgage. Instead, they show that the parties received deposits in their joint Citibank account in varying amounts and from many sources. Husband’s counsel acknowledged at trial that husband had “commingled . . . funds all over the place.” Thus, the circuit court was not plainly wrong in finding that he failed to prove that he had paid the mortgage with separate funds.
529 accounts
The parties stipulated that the children’s 529 accounts were husband’s separate property. By ordering equal division after post-secondary education or age 23, the circuit court treated the children’s 529 accounts as marital property. The court remands the case to the circuit court to classify the children’s 529 accounts as husband’s separate property without condition and to reconsider its equitable distribution award accordingly. And “because we reverse [this portion of the] equitable distribution award and remand for reconsideration, we further direct the [circuit] court, on remand, to reconsider the issue of spousal support.”
Affirmed in part, reversed in part and remanded.
Le v. Le, Record No. 0596-24-4, Sept. 16, 2025. CAV (unpublished opinion) (Frucci). From the Circuit Court of Frederick County (Eldridge IV). Minji Kim (Prosper Law PLLC, on briefs), for appellant. Demian J. McGarry (Curran Moher Weis, P.C., on brief), for appellee. VLW 025-7-255. 15 pp.
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