                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, O’Brien and Malveaux
PUBLISHED


            Argued at Richmond, Virginia


            KEVIN COE
                                                                               OPINION BY
            v.     Record No. 0854-15-4                                 JUDGE ROBERT J. HUMPHREYS
                                                                               JULY 26, 2016
            SEON HWA COE


                              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                          Louise M. DiMatteo, Judge

                           John Crouch (Crouch & Crouch PLLC, on briefs), for appellant.

                           Soyoung Lee (Lee & Meier, PLLC, on briefs), for appellee.


                   Kevin Coe (“father”) appeals the ruling of the Circuit Court of Arlington County (the

            “circuit court”) returning the parties’ child (“J.C.”) to the Republic of Korea (“Korea”) pursuant

            to the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”)

            and the award of legal fees, costs, and travel expenses associated with the case to Seon Hwa Coe

            (“mother”). Father alleges nine assignments of error. However, because many of them are

            repetitious, we analyze his assignments of error by grouping them into the following five basic

            issues: 1) whether the circuit court erred in finding Korea to be J.C.’s habitual residence;

            2) whether the circuit court erred in finding that father breached mother’s right of custody and

            that his retention of J.C. was therefore “wrongful” within the meaning of the Convention;

            3) whether the circuit court erred in finding that father failed to prove by clear and convincing

            evidence that J.C. has been abused, sexually or otherwise, while in mother’s custody in Korea so

            that returning J.C. to Korea would pose a grave risk as understood within the meaning of Article

            13(b) of the Convention; 4) whether the circuit court erred in making an award of fees and costs
to mother pursuant to 42 U.S.C. § 11607(b) of the International Child Abduction Remedies Act

(“ICARA”); and 5) whether the circuit court erred in entering a final order without providing

father an opportunity to object.1

                                          I. BACKGROUND

       Father and mother were married on June 15, 2004 in Arizona. J.C. was born on June 9,

2007.2 The family lived in Arizona until 2011, when father deployed to Afghanistan as a civilian

military contractor. Deciding not to remain in Arizona during father’s deployment, mother

moved to Korea with J.C. On March 1, 2012, father filed a Petition for Dissolution of Marriage

Without Minor Children in the Superior Court of Arizona, Maricopa County. On November 5,

2012, the Superior Court of Arizona, Maricopa County, entered a divorce decree, but it did not

make a child custody determination. As of this writing, a child custody determination has never

been made by any court. After returning from Afghanistan, father returned to the United States

and settled in Virginia. Mother and J.C. remained in Korea until December 2014. 3

       On November 30, 2014, father purchased and sent two round-trip airplane tickets to

mother in order for mother and J.C. to visit him in Virginia.4 On December 12, 2014, mother

and J.C. arrived in Virginia through Dulles International Airport. Father picked the pair up from



       1
         After the circuit court made its ruling and the parties filed their respective appellate
briefs, ICARA was recodified within the United States Code to 22 U.S.C. §§ 9001-9011.
Specifically, 42 U.S.C. § 11607(b) is now 22 U.S.C. § 9007(b).
       2
        Father is a citizen of the United States. Mother and J.C. are dual citizens of both the
United States and Korea.
       3
         After moving to Korea in 2011, the only occasion prior to December 2014 that mother
and J.C. left Korea was during a 2011 vacation to Phuket, Thailand with father.
       4
        Mother and J.C. were scheduled to return to Korea on January 24, 2015 because J.C.’s
Korean primary school commenced on January 27, 2015.

                                                 -2-
the airport and took them to the home of Bonnie Coe (“Bonnie”), father’s mother/J.C.’s paternal

grandmother, in Stafford, Virginia.

       On the way to Bonnie’s home, father told mother that they were stopping at Target to

pick up some necessary items. After arriving in the Target parking lot, father told mother to go

inside the store while he stayed in the car with J.C., who was asleep. Shortly after arriving at

Bonnie’s home, mother, while unpacking her luggage, discovered that both of J.C.’s passports

were missing.5 Father admitted to taking the passports while mother was inside Target and

refused to return them.

       On December 14, 2014, father and his girlfriend took J.C. from Bonnie’s home without

mother’s consent. Father testified that while at a Build-A-Bear store, J.C. refused multiple times

to use the restroom and that she urinated on herself during the visit. Father then took J.C. to stay

with him and his girlfriend at their apartment in Arlington, Virginia. From this point forward,

father denied mother access to J.C. After a couple of weeks, father emailed other to inform her

that she had an airplane ticket for her return to Korea.

       Father testified that J.C. expressed to his girlfriend that J.C. had knowledge of oral sex

and was being abused in Korea. Further, he testified that J.C. told him that her Korean uncle had

touched her private area. Father hired a child psychologist, Theresa Schill (“Schill”), to meet

with J.C. During a session with Schill, J.C. played with dolls and made them touch genitalia.

Schill testified that J.C.’s behavior “would not be necessarily developmentally [age]

appropriate.” However, Schill admitted that it was “outside the scope” of her expertise to know

if J.C. had been sexually abused. Subsequently, father hired Dr. Stanley E. Samenow



       5
        Due to J.C.’s dual-citizenship status she carries two passports—one American and one
Korean. For safekeeping, the passports were kept in separate locations within mother’s luggage.

                                                -3-
(“Dr. Samenow”), a child psychologist, to interview J.C. regarding possible sexual abuse in

Korea.

                                         Procedural History

         On January 27, 2015, the Juvenile and Domestic Relations District Court for Arlington

County (“the JDR court”) denied mother’s emergency petition for return of J.C. to her “country

of habitual residence” pursuant to the Convention. The JDR court held that the petition was

premature because the parties had planned for J.C. to stay in the United States for six weeks and

that six weeks’ time period had not yet run. Father filed an emergency petition for custody, but

the JDR court denied it for lack of jurisdiction. Both parties appealed to the circuit court.

         On March 12, 2015, the circuit court held its first evidentiary hearing. The circuit court

entered an order finding J.C.’s country of habitual residence, within the meaning of the

Convention, to be Korea. Additionally, it held that father had “wrongfully removed or retained”

J.C. within the meaning of the Convention, as implemented by ICARA. The circuit court was

unable to come to a determination regarding the allegation of sexual abuse in Korea. The circuit

court appointed a psychological forensic expert, Dr. Samenow, and ordered him to conduct a

thorough investigation of the allegations of sexual abuse in Korea in order for the circuit court to

determine whether the grave risk exception under Article 13(b) of the Convention applied.6

         On April 2, 2015, the circuit court held the second evidentiary hearing for the express and

limited purpose of hearing Dr. Samenow’s report. Dr. Samenow testified that he did not find any

evidence of abuse. On April 27, 2015, the circuit court entered an order accepting

Dr. Samenow’s testimony and report. The circuit court found J.C.’s habitual residence to be

Korea and ordered J.C. to be returned to Korea under the custody of mother. Additionally, it

         6
        Dr. Samenow, the court-appointed psychological forensic expert, is the same child
psychologist hired by father before the first evidentiary hearing to evaluate J.C.

                                                 -4-
found that father failed to overcome his burden to prove by clear and convincing evidence that

J.C. had been abused, sexually or otherwise, while in mother’s custody in Korea so that returning

J.C. to Korea would pose a grave risk of exposing J.C. to physical or psychological harm within

the meaning of Article 13(b) of the Convention.

       Further, the circuit court ordered, pursuant to 42 U.S.C. § 11607(b) (presently 22 U.S.C.

§ 9007(b)), that father pay a total of $29,955.37 for necessary expenses incurred by mother

during the course of the proceeding. The circuit court found the incurred necessary expenses to

be: 1) $26,668 for legal fees and costs; 2) $800 in interpreter fees; 3) $300 for visitation

exchange supervisor fees; and 4) $2,187.37 in transportation costs related to the return of J.C.

Notably, the circuit court added findings by handwritten signed notation to the final order that

“[i]t further appearing to the [circuit] court that based upon the evidence presented, there was

manipulation, misrepresentation, and fabrication by [father] regarding allegations of sexual

abuse, further justifying the decisions herein, including an award of fees and costs.” On May 29,

2015, father filed his written objections to the final order.

                                            II. ANALYSIS

                                       A. Standard of Review

       “In an action pursuant to ICARA and the Hague Convention, [the appellate court]

review[s] the district court’s findings of fact for clear error, while its conclusions regarding

principles of domestic, foreign, and international law are reviewed by us de novo.” Miller v.

Miller, 240 F.3d 392, 399 (4th Cir. 2001). “‘Clear error’ is a term of art derived from Rule 52(a)

of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact” in the

federal system. Ornelas v. United States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of

fact are binding on appeal unless “plainly wrong.” Quantum Dev. Co. v. Luckett, 242 Va. 159,

161, 409 S.E.2d 121, 122 (1991).
                                                 -5-
                        B. Preservation of Assignments of Error: Rule 5A:18

       Rule 5A:18 makes clear that “[n]o 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.” “A basic principle of appellate review is that, with few exceptions . . . arguments made

for the first time on appeal will not be considered.” Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d

367, 368 (2005). The purpose of the rule “is that the trial judge may be informed of the precise

points of objection in the minds of counsel so that it may be advised and rule intelligently.” Ross

v. Schnieder, 181 Va. 931, 941, 27 S.E.2d 154, 158 (1943). Additionally, “an appellate court’s

review of the case is limited to the record on appeal.” Wilkins v. Commonwealth, 64 Va. App.

711, 717, 771 S.E.2d 705, 708 (2015).

       It is well settled in Virginia that pursuant to Rule 1:1, “final judgments . . . remain under

the control of the trial court and subject to be modified, vacated, or suspended for twenty-one

days after the date of entry, and no longer.” In Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va.

555, 561 S.E.2d 734 (2002), the Supreme Court of Virginia provided a very clear outline of Rule

1:1. The Court held that “[t]he running of the twenty-one day time period prescribed by Rule 1:1

may be interrupted only by the entry, within the twenty-one day time period, of an order

modifying, vacating, or suspending the final judgment order.” Id. at 560, 561 S.E.2d at 737. “In

the absence of such an express order, the twenty-one day time period is not interrupted, and the

case will no longer be under the control of the trial court when the original twenty-one day time

period has run.” Id. at 562, 561 S.E.2d at 738.




                                                  -6-
       In the case at bar, father contends he preserved five of his nine assignments of error when

he filed his “Respondent’s Objections to Final Order.”7 However, when father filed his

objections to the final order on May 29, 2015 more than twenty-one days had passed since the

final order was entered on April 27, 2015. Therefore, pursuant to Rule 1:1, the circuit court no

longer had jurisdiction over the case at the time father filed his objections. Father did not present

the circuit court with an opportunity to intelligently rule on his objections; thus, his arguments

with respect to these assignments of error were not preserved for appellate review under Rule

5A:18. 8

       There are four remaining issues that were preserved in the circuit court for appellate

review: 1) whether the circuit court erred in determining that father violated mother’s custody

rights; 2) whether the circuit court erred in finding J.C.’s habitual residence to be the Republic of

Korea; 3) whether the circuit court erred in awarding mother fees and costs pursuant to 42 U.S.C.

§ 11607(b) (presently 22 U.S.C. § 9007(b)); and 4) whether the circuit court erred by entering a

final order without providing father an opportunity to object.




       7
          These assignments of error are as follows: 1) the circuit court erred in finding no grave
risk or physical or psychological harm to J.C.; 2) the circuit court erred in finding an unspoken
message in the expert witness’ testimony which it used as an aggravating factor justifying the
award of fees and costs; 3) the circuit court erred in accepting mother’s last-minute explanation
for J.C.’s familiarity with sexual practices; 4) the circuit court erred in refusing to allow time to
verify or proffer evidence to disprove the expert witness’ statements at the second evidentiary
hearing; and 5) the circuit court erred in finding father at fault and “manipulative” for seeking
therapy and forensic evaluation for apparent sexual abuse with regard to J.C.
       8
          Additionally, of the assigned errors that were also procedurally defaulted under Rule
5A:18, father failed to provide any legal authority pursuant to Rule 5A:20(e) for the allegations
that the circuit court erred in 1) finding no grave risk of physical or psychological harm to the
child, 2) accepting mother’s explanation for J.C.’s familiarity with sexual practices, 3) failing to
allow father’s counsel to present or proffer evidence to disprove the expert witness, and
4) finding father at fault for raising issues of abuse.

                                                -7-
                         C. Failure to Provide Legal Support: Rule 5A:20

        Although his assigned error that the circuit court improperly ruled that father’s retention

of J.C. violated mother’s custody rights and constituted a wrongful removal was preserved in the

circuit court, father has waived any appellate consideration of this issue through his failure to

provide any legal support for his position as required by Rule 5A:20(e). As this Court has

previously stated in Fadness v. Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 865 (2008)

(quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008)), “Rule

5A:20(e) requires that an appellant’s opening brief contain [t]he principles of law, the argument,

and the authorities relating to each question presented. Unsupported assertions of error do not

merit appellate consideration.” “[W]hen a party’s failure to strictly adhere to the requirements of

Rule 5A:20(e) is significant, ‘the Court of Appeals may . . . treat a question presented as

waived.’” Id. at 850, 667 S.E.2d at 866 (quoting Parks v. Parks, 52 Va. App. 663, 664, 666

S.E.2d 547, 548 (2008)).

        In this case, father utilized the “throw everything at the wall and hope something sticks”

approach to appellate advocacy that this Court condemned in Fadness. 52 Va. App. at 850-51,

667 S.E.2d at 866. As in Fadness, this tactic “is as unappreciated as it is ineffective.” Id. at 851,

667 S.E.2d at 866. The appellate courts of this Commonwealth “are not unlit rooms where

attorneys may wander blindly about, hoping to stumble upon a reversible error.” Id. When a

party believes the circuit court erred, it is the duty of that party “to present that error to us with

legal authority to support their contention.” Id. We hold that because father failed to do so, and

because that failure is significant, he has waived his right to have this Court decide whether the

circuit court improperly ruled that father’s retention of J.C. violated mother’s custody rights and

constituted a wrongful removal.



                                                  -8-
        Three issues now remain before us. First, we must consider whether the circuit court

erred in finding J.C.’s habitual residence to be Korea. Second, we must determine if the circuit

court erred in entering a final order without providing father an opportunity to object. Finally,

we address whether the circuit court erred in making an award of fees and costs to mother

pursuant to 42 U.S.C. § 11607(b) (presently 22 U.S.C. § 9007(b)).

                                           D. Habitual Residence

        The question of J.C.’s habitual residence immediately prior to her retention in the United

States is the threshold issue this Court must address. Because most Convention cases are filed in

federal courts, this issue appears to be one of first impression in the Commonwealth.

        In 1988, the United States ratified the Convention, and Congress implemented it through

ICARA. 22 U.S.C. §§ 9001-9011. The Convention “reflects a universal concern about the harm

done to children by parental kidnapping and a strong desire among the Contracting States to

implement an effective deterrent to such behavior.”9 Feder v. Evans-Feder, 63 F.3d 217, 221 (3d

Cir. 1995); see also Hague Convention, Preamble; 22 U.S.C. § 9001(a)(1)-(4). A primary

objective of the Convention is to “secure the prompt return of children wrongfully removed to or

retained in any Contracting State.” Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1228 (2014).

The Convention “lays venue for the ultimate custody determination in the child’s country of

habitual residence rather than the country to which the child is abducted.”10 Id.


        9
            Both the United States and Korea are contracting states to the Convention.
        10
           We note that, according to father’s brief, he filed for custody in Korea on May 8, 2015,
after the circuit court issued its final order and prior to filing his objections to the circuit court’s
final order or his notice of appeal. Mother argues that by filing for custody in Korea, father has
rendered this appeal moot.
        Nothing in the record verifies a child custody filing in Korea. However, the record
clearly establishes that at the time of J.C.’s removal a custody dispute had not been initiated in
any jurisdiction. Even if a custody dispute had been initiated prior to J.C.’s removal, “[f]or

                                                  -9-
       “If the child in question has been ‘wrongfully removed or retained within the meaning of

the Convention,’ the child shall be ‘promptly returned,’ unless an exception is applicable.”

Abbott v. Abbott, 560 U.S. 1, 9 (2010) (quoting 42 U.S.C. § 11601(a)(4) (presently 22 U.S.C.

§ 9001(a)(4)). The Convention “is designed to restore the factual status quo which is unilaterally

altered when a parent abducts a child and aims to protect the legal custody rights of the

non-abducting parent.” Feder, 63 F.3d at 221. “[T]he cornerstone of the Convention is the

mandated return of the child to his or her circumstances prior to the abduction if one parent’s

removal of the child from or retention in a Contracting State has violated the custody rights of

the other, and is, therefore, ‘wrongful.’” Id.; see also Hague Convention, Art. 12. Exceptions

exist within the framework of the general rule of return. For example, returning the child is not

mandatory if “there is a grave risk that [a child’s] return would expose the child to physical or



purposes of the Convention, it is irrelevant whether there is a custody dispute concerning that
child pending at the time of removal.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343
(5th Cir. 2004); see also Hague Convention, Art. 4.
        Moreover, the Convention is applicable to make a determination about the wrongful
removal of a child, and a parent only needs to have a right of custody. See Hague Convention,
Art. 3(a). We accept the circuit court’s finding that J.C. was wrongfully removed and that father
violated mother’s custody rights because father’s assignment of error that he did not violate
mother’s custody rights and that J.C. was not wrongfully removed is procedurally barred. Even
so, the Explanatory Report to the Convention instructs:

               From the Convention’s standpoint, the removal of a child by one
               [parent with custody] without the consent of the other, is . . .
               wrongful, and this wrongfulness derives . . . from the fact that
               such action has disregarded the rights of the other parent which are
               also protected by law, and has interfered with their normal
               exercise. . . . [The Convention] is not concerned with establishing
               the person to whom custody of the child will belong at some point
               in the future . . . . It seeks, more simply, to prevent a later decision
               on the matter being influenced by a change of circumstances
               brought about through unilateral action by one of the parties.

Explanatory Report, P 71, at 447-48; see also Sealed Appellant, 394 F.3d at 343. Therefore, this
case was properly brought pursuant to the Convention and the appeal is not moot.

                                                - 10 -
psychological harm or otherwise place the child in an intolerable situation.” Hague Convention,

Art. 13(b).11

         Under Article 3 of the Convention, the removal or retention of a child is “wrongful”

where:

                a. it is in breach of rights of custody attributed to a person, an
                institution or any other body, either jointly or alone, under the law
                of the State in which the child was habitually resident immediately
                before the removal or retention; and

                b. at the time of removal or retention those rights were actually
                exercised, either jointly or alone, or would have been so exercised
                but for the removal or retention . . . .

Hague Convention, Art. 3. For purposes of the Convention, “‘rights of custody’ shall include

rights relating to the care of the person of the child and, in particular, the right to determine the

child’s place of residence[.]” Hague Convention, Art. 5(a).

         Under ICARA, state and federal district courts have concurrent original jurisdiction of

actions arising under the Convention. 22 U.S.C. § 9003(a). Any person seeking the return of a

child pursuant to the Convention may commence a civil action by filing a petition in a court

where the child is located. 22 U.S.C. § 9003(b). The petitioner bears the burden of showing by a

preponderance of the evidence that the removal or retention was wrongful under Article 3; the

respondent must show by clear and convincing evidence that one of Article 13’s exceptions

applies to prevent the return. 22 U.S.C. § 9003(e)(1)(A), (2)(A). A return remedy does not alter

the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the

country of habitual residence. Hague Convention, Art. 19; Abbott, 560 U.S. at 9.




         11
         This exception was unsuccessfully pleaded by father; however, the assignment of error
was procedurally defaulted pursuant to Rule 5A:18.

                                                 - 11 -
       The Convention does not specifically define the term “habitual residence.” However,

many federal circuits have had the opportunity to do so. The United States Court of Appeals for

the Fourth Circuit has concluded that “there is no real distinction between ordinary residence and

habitual residence.” Miller, 240 F.3d at 400; see also Friedrich v. Friedrich, 983 F.2d 1396,

1398 (6th Cir. 1993) (explaining “[a] person can have only one habitual residence. On its face,

habitual residence pertains to customary residence prior to the removal. The court must look

back in time, not forward.”). The analysis is “a fact specific inquiry that should be made on a

case-by-case basis.” Miller, 240 F.3d at 400. Notably, “a parent cannot create a new habitual

residence by wrongfully removing and sequestering a child.” Id.

       In the case at bar, J.C. was born in the United States in the state of Arizona. Father

deployed to Afghanistan, and mother returned to her native country of Korea with J.C. Mother

and J.C. never returned to the United States until father purchased roundtrip airline tickets for

them to visit him in December 2014. Accordingly, the circuit court determined J.C.’s habitual

residence to be Korea. On brief, father maintains this finding was error and that the United

States is J.C.’s habitual residence because there was never a shared intention of the parties that

the child would permanently remain in Korea.

       Father cites Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004), arguing that we

should adopt the United States Court of Appeals for the Third Circuit’s definition of habitual

residence. He argues, pursuant to Whiting, that in the absence of a court order, forming a child’s

habitual residence requires a “clear shared intent” of the parents coupled with an intent to

abandon the existing habitual residence “for a definite and extended period.” However, father

cherry-picks language from Whiting to favor his cause without regard for the context of the

language he cites, and does so without any analysis of its application to the facts of this case.



                                                - 12 -
       Whiting involved a petition pursuant to the Convention for the return of an

eighteen-month-old child. In short, the parents executed a child custody agreement directly after

the September 11, 2001 terrorist attacks on the United States, in which the child was to live with

the mother in Canada, but would be returned to the United States “no later than October 19, 2003

as long as there is no imminent danger of constant terrorist attacks.” Id. at 542. However,

during the father’s 2001 Christmas visit with the child in Canada, he checked out of his hotel

room at 4:30 in the morning and took the child with him back to the United States without the

mother’s consent. Id. The definition of habitual residence was the central issue in the case.

       First, Whiting reiterated that its previous definition of habitual residence as provided in

               Feder continues to provide the best guidance for determining a
               child’s habitual residency. In Feder, we stated that “a child’s
               habitual residence is the place where he or she has been physically
               present for an amount of time sufficient for acclimatization and
               which has a ‘degree of settled purpose from the child’s
               perspective.’”

Id. at 550 (quoting Feder, 63 F.3d at 224). Then, seeking to clarify its definition of habitual

residence when a case involves a very young child, Whiting held that

               in [the case of a very young child], acclimatization is not nearly as
               important as the settled purpose and shared intent of the child’s
               parents in choosing a particular habitual residence. In recognizing
               acclimatization as an element of habitual residency in Feder, we
               were attempting to develop a definition of habitual residence
               which would comport with one of the main objectives of The
               Hague Convention - i.e., restoring the child to the status quo before
               the abduction. We recognize that this goal is crucial when the
               child involved is not only cognizant of his or her surroundings, but
               also of an age at which it is able to develop a certain routine and
               acquire a sense of environmental normalcy. A four-year-old child,
               such as Evan Feder, certainly has this ability. A child of such age
               is not only aware of those around him, but is able to form
               meaningful connections with the people and places he encounters
               each day.




                                               - 13 -
Id. The Third Circuit concluded that the eighteen-month-old child did not have the capability to

be cognizant of its surroundings such that it had developed a certain routine and acquired a sense

of environmental normalcy. Id. at 551. “Therefore, [a very young child’s] degree of

acclimatization . . . is not nearly as important to our determination of habitual residence as are

her parents’ shared intentions as to where she would live during her formative years.” Id.

          Father asks us to selectively adopt the portion of Whiting he cites while he ignores the

broader holding in Whiting that for a child over the age of four the previous habitual residence

standard remains in place—“a child’s habitual residence is the place where he or she has been

physically present for an amount of time sufficient for acclimatization and which has a ‘degree

of settled purpose from the child’s perspective.’” Id. at 550 (quoting Feder, 63 F.3d at 224). In

the case before us, the record supports the circuit court’s conclusion that J.C. was old enough and

physically present in Korea long enough to be acclimatized from her perspective to that country.

          Accordingly, we hold that the circuit court did not err when it held that mother, as the

proponent, met her burden to prove by a preponderance of the evidence that J.C.’s habitual

residence is Korea. Under the Fourth Circuit’s Miller standard, which we find persuasive and

adopt, there is little doubt that the child’s customary residence prior to the removal was

Korea—J.C. had lived there since 2011. Moreover, even under the Third Circuit’s Whiting

standard, J.C. is over the age of four; hence the place of J.C.’s acclimatization that most closely

restores J.C. to the status quo before the abduction is Korea, where, without father’s objection,

she had lived with mother for the preceding three years and where she was enrolled in primary

school.

                                     E. Lack of Opportunity to Object

          Father states that he raised the issue that he had no notice of an opportunity for him to

object before the circuit court entered its final order so that this Court might “consider all the
                                                 - 14 -
issues raised in the assignments of error, even if the Court finds that some [errors] are not spelled

out.” However, the record does not support his contention.

       After the second evidentiary hearing, the circuit court asked mother’s counsel to prepare

the final order. Mother’s counsel drafted an order and circulated it to father’s counsel, who

acknowledged e-mail receipt of the draft order. On April 27, 2015, the circuit court entered its

final order with additional handwritten findings.

       We conclude that father had a sufficient opportunity to make objections to the final order.

He received the draft order on April 14, 2015, and the circuit court did not enter its final order

until April 27, 2015. This provided father two weeks prior to entry of the final order to make

any objections. Additionally, he could have preserved his objections by filing a motion to

reconsider in the circuit court within twenty-one days after entry of the final order. However, by

the time father filed his motion on May 29, 2015, the circuit court lacked jurisdiction, pursuant to

Rule 1:1, because more than twenty-one days had passed since the entry of the final order.

                                   F. Fees, Costs and Expenses Award

       Pursuant to 22 U.S.C. § 9007(b)(3),

                 [a]ny court ordering the return of a child pursuant to an action
                 brought under section 22 U.S.C. § 9003 shall order the respondent
                 to pay necessary expenses incurred by or on behalf of the
                 petitioner, including court costs, legal fees . . . , and transportation
                 costs related to the return of the child, unless the respondent
                 establishes that such order would be clearly inappropriate.

Father asks this Court to find that the fee award to mother is clearly inappropriate and to vacate

such an award.

       It is evident from the statute and the relevant case law that an award of fees and costs is

ordinarily required and the courts are given broad discretion to enforce compliance with the

Convention. It is “the respondent’s burden to establish that a fee/expense [award] would be

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clearly inappropriate.” Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). A fee award under

the Convention is reviewed for abuse of discretion. Id. An abuse of discretion has been found

when a court “based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008). In Virginia, “[a]n

award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is

reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326, 333,

357 S.E.2d 554, 558 (1987). “[T]he key to a proper award of counsel fees [is] . . .

reasonableness under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1

Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).

       In this case, we find that father failed to meet his burden to show that a fee award would

be clearly inappropriate. Father argues that he has “straitened [sic] financial circumstances.”

However, he never provided any evidence, analysis, or reasoning regarding his inability to pay

the award. Rather, father only provided this Court with a bulleted list of cases regarding fee

awards. Thus, this Court finds that the circuit court clearly considered all of the evidence in the

case and based its decision on the actions of the parties throughout the litigation. In light of all

that has taken place, there is nothing unreasonable about the circuit court awarding a fee to

mother pursuant to the statute or the amount awarded. Father did nothing to show that the award

was clearly inappropriate.

       Furthermore, we hold, pursuant to 22 U.S.C. § 9007(b)(3), that father shall pay all of the

additional necessary and reasonable expenses incurred by or on behalf of mother in connection

with this appeal. Therefore, we remand to the circuit court to determine the amount of additional

reasonable and necessary expenses incurred by or on behalf of mother including court costs,

legal fees, and transportation costs related to this appeal.



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                                         III. CONCLUSION

       For the aforementioned reasons, we conclude that the circuit court did not err in finding

that mother met her burden by a preponderance of the evidence to establish that J.C.’s habitual

residence is Korea, that father did violate mother’s custody rights, that father did have an

opportunity to object but failed to do so, and that the award of fees, costs, and expenses was

appropriate. All other assigned errors, including father’s contention that the grave risk exception

applies, were either procedurally defaulted under Rule 5A:18 or waived pursuant to Rule 5A:20.

Therefore, the judgment of the circuit court is affirmed, and the case is remanded solely for

consideration of an award of reasonable appellate attorney’s fees and costs consistent with this

opinion.

                                                                           Affirmed and remanded.




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