COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Beales, Athey and Callins Argued by videoconference
SHADDY FOUAD MOUMEN MEMORANDUM OPINION* BY v. Record No. 0132-24-4 JUDGE RANDOLPH A. BEALES MAY 6, 2025 MELANIE JEANNETTE KHOURY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
Mikhail “Misha” Lopez (Lee Lopez Law, PLLC, on briefs), for appellant.
John E. Byrnes (Kelly Byrnes Danker & Luu, PLLC, on brief), for appellee.
Shaddy Fouad Moumen appeals the judgment of the Circuit Court of Fairfax County
finding him in civil contempt for violating a family abuse protective order, entering a new
protective order, and awarding Melanie Jeannette Khoury her attorney fees and costs in the
circuit court. He challenges the circuit court’s limits on his cross-examination of Khoury, the
sufficiency of the evidence to support the circuit court’s contempt finding, and the circuit court’s
authority to issue a new protective order under Code § 16.1-253.2. Moumen also asserts that
Khoury wrongly used privileged communications that were captured in jail calls.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. BACKGROUND1
Under settled appellate principles, we state the facts in the light most favorable to
Khoury, the prevailing party in the circuit court. “On appeal, we view the evidence ‘in the light
most favorable to the prevailing party below and its evidence is afforded all reasonable
inferences fairly deducible therefrom.’” Bedell v. Price, 70 Va. App. 497, 500-01 (2019)
(quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 40 (2014)).
Moumen and Khoury were divorced in 2021. On July 26, 2022, the Fairfax County
Juvenile and Domestic Relations District Court (the “JDR court”) entered a family abuse protective
order directing that Moumen “shall have no contact of any kind with” Khoury, except for “civil
communication via text and email regarding the parties’ children.”2 The JDR court’s protective
order also required that Moumen “must not retain, persuade, or otherwise induce any other person
to do to Petitioner [Khoury], on his behalf, anything Respondent [Moumen] is prohibited from
doing by virtue of this Order. Without limitation, Respondent must not retain any Private
Investigator to follow or surveil Petitioner.” Less than a week after the JDR court entered the
protective order, Moumen and his girlfriend, Marcella, discussed the order’s restrictions during a
recorded jail call. Moumen admitted that he was “not allowed to do any surveillance of Melanie
[Khoury]. That is part of my protective order for the next two years.” However, Moumen agreed
with Marcella when she said that she could “create my own investigation if I wanted to of her
[Khoury].” Moumen also maintained that he could “surveil my kids. I am allowed to do that.”
1 The record in this case was sealed. “To the extent that this opinion discusses facts found in sealed documents in the record, we unseal only those facts.” Brown v. Virginia, 302 Va. 234, 240 n.2 (2023). 2 At the time, Moumen was incarcerated on charges of stalking, two counts of violating a preliminary protective order, and illegally placing a tracking device on Khoury’s car. Moumen received a deferred disposition on the stalking and illegally using a tracking device charges, which were later dismissed. The Commonwealth nolle prossed the charges for violating a preliminary protective order. -2- Meanwhile, Khoury (a real estate agent with Keller Williams) had been planning a webinar
on August 16, 2022, to discuss how she went “from leaving a domestic violent home to running a
successful real estate business.” For several weeks before the webinar, Khoury advertised the event
on her public Instagram account, where she testified that she had “around 2800” followers. Khoury
required followers to “direct message me for the [registration] details.” Khoury testified that she
would then “ask[] to have everyone go through Patricia” (Khoury’s colleague). According to
Khoury, people interested in the webinar “would need to register for the webinar to receive the
link.” Khoury recounted that Patricia “created the Zoom link and she facilitated the webinar.”
Khoury also testified that she thought registrants needed to enter their “name, email address, and
password” to enter the meeting. Khoury recalled that the password for the webinar was “2022, I
believe.” Although Khoury explained that she “was under the impression that, yes, this was a
private webcast,” she later “realized that there was an oversight and that specific link was put into a
calendar within a public website that should never have been there.”
From jail, Moumen asked Marcella, his real estate agent (John Crow), and his friend
(“Andrew”) to attend Khoury’s presentation.3 During a jail call on August 4, 2022, Marcella
informed Moumen that “John [Crow] is going” to attend the presentation and that he is “going to
bring a recorder and record the whole thing like he has to.” When Moumen expressed concern that
Crow might not attend and that he wanted to make sure Crow filmed the event, Marcella told
Moumen not to worry because “he is going to do it.” Moumen also discussed attendance with
Andrew. During those discussions, Moumen said that he needed Andrew’s help because “[t]here’s
this event that Marcella found that my ex-wife is doing. I need you to go in there and be a PI.”
Moumen stated that he “need[ed] somebody to record, see if she’s defaming my character.” When
3 There is no direct evidence that either Marcella or Andrew attended the webinar. However, the record supports the circuit court’s finding that Moumen repeatedly urged them to participate. -3- Andrew agreed to attend, Moumen told Andrew to “[t]alk to Marcella about it because you know,
these calls are recorded. I am not allowed to do so.”
The day before Khoury’s webinar, Marcella informed Moumen that Crow “was saying he
got the meeting link for Melanie’s [Khoury’s] virtual thing that she is doing tomorrow.”
Moumen asked if Crow could “videotape the whole thing from beginning to end” because
“there’s going to be something in there that’s defaming, you know?” He also asked if Marcella
could have the link forwarded to her and if she could “create a new email address” because she
was “going to have to put your name or something and then your email” in to attend the webinar.
Later, Andrew asked when Moumen wanted him “to do the PI stuff.” Moumen advised Andrew
to use fake information, a generic email address, and to “log in and videotape the whole thing.”
Crow called Moumen after the webinar and recounted the program contents. Crow stated
that he had recorded part of the webinar and had sent Marcella a copy of the recording. Moumen
indicated that he was “going to let the lawyers know. Just send whatever you got, send it to
Marcella so I can send it to my lawyers.” Khoury testified that Crow attended the webinar but
that “he did not list himself as John Crow” and that “[h]e said he didn’t use his real name.”
On August 18, 2022, two days after Khoury’s webinar, the JDR court held a hearing to
discuss whether Khoury should receive attorney fees following entry of the July 26, 2022 family
abuse protective order. During the hearing, Moumen’s counsel revealed that Moumen had
obtained a recording of the webinar. Because Moumen had “a recording of a private meeting at
which the petitioner [Khoury] spoke,” the JDR court issued an order directing Moumen to show
cause why he should not be held in contempt for violating the protective order. The JDR court
ultimately found Moumen in civil contempt. Moumen appealed that finding to the circuit court.4
4 The notice of appeal sent to Khoury indicates Moumen appealed “from a decision made by the Juvenile and Domestic Relations Court of said County.” The appeal was of case number JA430891-05-04, in which the JDR court found Moumen guilty of civil contempt for violating -4- The circuit court entered a scheduling order requiring the parties to exchange their exhibit lists at
least 15 days before trial. The scheduling order expressly provided that “[a]ny exhibit or witness
not so identified and filed will not be received in evidence, except in rebuttal or for impeachment.”
Moumen’s counsel filed his witness and exhibit list 14 days before trial. He filed a corrected list 13
days before trial.
At the circuit court hearing on December 20, 2023, Khoury acknowledged on
cross-examination that she only learned during the JDR court hearing (for attorney fees following
entry of the protective order) that someone had recorded part of her webinar.5 When Moumen’s
counsel asked what Khoury had said to her counsel “about the webcast at that moment,” Khoury’s
counsel objected on the basis that Khoury’s statements were covered by the attorney-client
privilege. Moumen’s counsel argued Khoury’s counsel had waived the attorney-client privilege by
proffering Khoury’s statements because those statements “ha[d] to go with the issue that we
originally were talking about and that was the issue of whether this [webinar] was public or
private.”6 The circuit court sustained the objection by Khoury’s counsel. Khoury also “beg[ged]
the Courts to renew my protective order.” When Moumen’s counsel responded by objecting, the
circuit court judge interjected, stating, “There’s no need to. The protective order, we already
discussed that. It’s in force right now, even as we speak.”
the JDR court’s protective order. During the hearing on December 20, 2023, the court also asked if “all I’m hearing today is whether watching the webinar was a violation of the protective order.” In response, Moumen’s counsel answered, “That’s exactly right.” 5 Moumen’s counsel, however, sought to establish that recording Khoury’s webinar did not violate the protective order because the webinar was “on a public website available to the public without password protection, without registration required.” 6 Moumen’s counsel does not state specifically what Khoury’s counsel said that he alleges resulted in waiving the attorney-client privilege. -5- Moumen’s counsel also questioned Khoury concerning screenshots from the Keller
Williams website’s calendar page contained in Exhibit 8. Khoury’s counsel objected to Moumen’s
counsel asking questions about Exhibit 8 because Moumen’s counsel did not disclose the exhibit in
accordance with the circuit court’s scheduling order. Moumen’s counsel claimed that he did
disclose the exhibit because Exhibit 8 “is an overlay over Exhibit 3 from the 10/4 meeting—from
the 10/4 testimony.” In response, Khoury’s counsel stated that Moumen “had an obligation to
provide this to me in accordance with this Court’s scheduling order.” Moumen’s counsel countered
that it was impeachment evidence and claimed that, even if he had failed to comply with the
scheduling order, “I don’t think there’s any prejudice to this because Ms. Danker [Khoury’s
counsel] saw this months and months ago.” The circuit court sustained the objection but permitted
Moumen’s counsel to ask if the exhibit showed the password listed under the webinar link. While
Khoury initially stated that she “believed that this was a private webcast,” she later acknowledged
that the password to the session “was under the link” and that the password “did not protect [her]”
from people viewing her content.
As Moumen’s counsel began referencing his Exhibit 7—which is described in his exhibit
list as “[s]creenshots of a countdown to the webcast dated August 15, 2022”—Khoury’s counsel
again objected based on the late disclosure. The circuit court sustained the objection.
After considering the evidence, the circuit court found that Moumen violated the protective
order by “induc[ing] others to follow [Khoury]. That’s what’s the—that’s why he’s in violation. So
if you want an answer, yes, he’s in contempt.” Khoury sought, and was awarded, attorney fees.
After the court awarded attorney fees, it stated that there was “no need for a new protective order.
This one, now that we’ve got my ruling of the day, everybody knows what we’re talking about.”
However, Khoury’s counsel claimed that Code § 16.1-253.2 “does require that when the Court finds
the contempt, that you enter a new protective order as of the finding of the contempt, which is
-6- today.” Both counsel did mention to the judge that the current protective order was still in effect for
quite a while yet—with Khoury’s counsel informing the court that it was still in effect for 7 more
months until July 2024. In response, the circuit court judge stated, “My new protective order is just
a renewal of the old one. I’m not going to add any new—it’ll take days to come up with language
here that won’t be objected to. So we’re just going to—I’m just going to renew this one. That’s my
new protective order.” The circuit court also granted Khoury’s request that Moumen be prohibited
from surveilling the parties’ children and Khoury’s household members. Moumen now appeals to
this Court.
II. ANALYSIS
A. The Circuit Court’s Evidentiary Rulings
1. Khoury’s Attorney-Client Privilege
Moumen claims that the circuit court’s decision to “prevent[] Moumen from cross-
examining Khoury about statements made to Khoury’s counsel concerning the public nature of the
webinar at issue” was error “because the attorney-client privilege had been waived by her counsel
during in-court proceedings.” Specifically, Moumen claims that “[w]hen Khoury informed Danker
[her attorney] of information pertaining to the public versus private nature of the webinar—a key
issue in the eyes of the trial court—and Danker then revealed that information at a hearing, the
privilege was waived.”
Determining the “‘admissibility of evidence is within the discretion of the trial court,’ and
an appellate court will not reject such decision absent an ‘abuse of discretion.’” Williams v.
Commonwealth, 71 Va. App. 462, 487 (2020) (quoting Tirado v. Commonwealth, 296 Va. 15, 26
(2018)). “[T]he abuse of discretion standard requires a reviewing court to show enough
deference to a primary decisionmaker’s judgment that the [reviewing] court does not reverse
merely because it would have come to a different result in the first instance.” Commonwealth v.
-7- Thomas, 73 Va. App. 121, 127 (2021) (alterations in original) (quoting Lawlor v.
Commonwealth, 285 Va. 187, 212 (2013)). “Only when reasonable jurists could not differ can
we say an abuse of discretion has occurred.” Commonwealth v. Barney, 302 Va. 84, 94 (2023)
(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
The attorney-client privilege “belongs to the client and not to the attorney.”
Commonwealth v. Edwards, 235 Va. 499, 509 (1988). “The waiver, like the privilege, [also]
belongs to the client.” Id. “The fact that in exceptional situations the lawyer under the Rules has
either a limited discretion or a limited obligation to disclose a client confidence does not vitiate
the proposition that, as a general matter, the client has a reasonable expectation that information
relating to the client will not be voluntarily disclosed . . . .” Va. Sup. Ct. R. pt. 6, sec. II,
Preamble. The attorney-client privilege “may be expressly waived by the client, or a waiver may
be implied from the client’s conduct.” Banks v. Mario Indus., 274 Va. 438, 454 (2007) (quoting
Edwards, 235 Va. at 509). Such conduct includes when “persons outside the privilege can
overhear what is said.” Id. (quoting Clagett v. Commonwealth, 252 Va. 79, 92 (1996)).
Khoury’s counsel did not waive the attorney-client privilege because the privilege belongs
to Khoury as the client—not to her counsel. Moumen has not argued that any exception to this
general rule applies in this case now before us. Furthermore, the cases cited by Moumen to support
the claim that Khoury’s counsel waived the attorney-client privilege do not stand for that
proposition. Moumen’s citation to Commonwealth v. Edwards is unconvincing because that case
involved a voluntary disclosure by an attorney’s client—not a proffer of a client’s statement by the
client’s attorney. Edwards, 235 Va. at 506-10. Moumen’s citation to United States v. Cote, 456
F.2d 142, 144-145 (8th Cir. 1972), is also unconvincing because that case dealt with clients who
waived the attorney-client privilege by filing amended tax returns—not with an attorney who
waived his client’s privilege. Moumen has therefore not cited to any precedent to support his claim
-8- that a person’s attorney waives the attorney-client privilege when the attorney proffers the client’s
statements. Therefore, we cannot conclude that the circuit court abused its discretion by ruling that
Khoury’s counsel did not waive the attorney-client privilege.
2. Moumen’s Excluded Exhibits
Moumen claims, “The trial court erred by prohibiting Moumen from introducing his
Exhibits 7 and 8 because those exhibits were intended to impeach Khoury, which the Scheduling
Order permitted.” Moumen alternatively argues that he already produced Exhibits 7 and 8 to
Khoury because those exhibits “had been previously exchanged in the underlying case.” Even if he
did not timely produce the exhibits to the circuit court, Moumen argues that “there was no prejudice
to Khoury.”
“A circuit court’s judgment is presumptively correct, and the appellant bears the burden
of presenting a sufficient record to permit a determination whether the circuit court committed an
alleged error.” Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341, 348 (2007).
“When testimony is rejected before it is delivered, an appellate court has no basis for
adjudication unless the record reflects a proper proffer.” Rose v. Jaques, 268 Va. 137, 154
(2004) (quoting Whittaker v. Commonwealth, 217 Va. 966, 968 (1977)). The proffer
requirement safeguards “our duty under Code § 8.01-678 to reverse only when the trial court
error actually prejudiced the defense.” Ray v. Commonwealth, 55 Va. App. 647, 650 (2010).
“Absent a proffer showing ‘harm was done,’ we are ‘forbidden to consider the question.’” Id.
(quoting Scott v. Commonwealth, 191 Va. 73, 78-79 (1950)).
Moumen’s Exhibit 7 (screenshots of a countdown to Khoury’s webcast) and Exhibit 8
(screenshots of the Keller Williams website’s calendar) are not included in the record before this
Court on appeal. Thus, the record is insufficient to consider Moumen’s claims regarding those
exhibits. Although the circuit court and parties viewed the exhibits, neither Exhibit 7 nor Exhibit 8
-9- was made part of the record. Moumen also did not proffer the precise contents of the excluded
exhibits. His failure to ensure the exhibits were included in the record deprives this Court of the
ability to determine whether the circuit court erred and whether Moumen suffered any prejudice as a
result. Target Corp., 274 Va. at 348. Therefore, this Court will not disturb the circuit court’s
decision below prohibiting Moumen from introducing Exhibits 7 and 8.
B. The Circuit Court’s Contempt Finding
Moumen asserts that “[t]he admissible evidence adduced at trial was insufficient to find
Moumen in civil contempt of court for violating the JDR Protective Order.” Because Moumen
argues there was insufficient evidence to find him in contempt, he also argues that the “award of
attorney’s fees was improper.”
“[W]e review the exercise of a court’s contempt power under an abuse of discretion
standard.” Mills v. Mills, 70 Va. App. 362, 373 (2019) (alteration in original) (quoting Zedan v.
Westheim, 60 Va. App. 556, 574 (2012)). “In reviewing a finding of contempt where ‘evidence
was taken ore tenus[,] . . . the conclusion on the facts stands upon the same plane as the verdict
of a jury.’” Id. (alterations in original) (quoting Drake v. Nat’l Bank of Com. of Norfolk, 168 Va.
230, 240 (1937)). “As such, the circuit court’s factual findings may ‘not be disturbed on appeal
unless plainly wrong or without evidence to support’ them.” Id. (quoting Ware v. Ware, 203 Va.
189, 195 (1962)).
The Supreme Court has stated, “‘[T]here must be an express command or prohibition’
which has been violated in order for a proceeding in contempt to lie.” Petrosinelli v. PETA, Inc.,
273 Va. 700, 707 (2007) (quoting French v. Pobst, 203 Va. 704, 710 (1962)). “In a show cause
hearing, the moving party need only prove that the offending party failed to comply with an
order of the trial court.” Koons v. Crane, 72 Va. App. 720, 737 (2021). “Once the movant
- 10 - proves noncompliance, ‘the burden is on the obligor to provide justification for the failure to
comply.’” Id. at 737-38 (quoting Barnhill v. Brooks, 15 Va. App. 696, 704 (1993)).
The record before this Court on appeal supports the circuit court’s finding that Moumen
disobeyed a court order. Almost immediately after the protective order was entered, Moumen
and Marcella were discussing ways to evade its terms. Moumen told Marcella that, while he
could not surveil Khoury, she could. Moumen asked multiple people—including Marcella, John
Crow, and his friend Andrew—to attend the webinar. Moumen received assurances from
Marcella that “John [Crow] is going” to attend the webinar and that he was “going to bring a
recorder and record the whole thing.” Moumen told Andrew that he needed Andrew to “go in
there and be a PI.” He also encouraged Andrew to talk to Marcella about attending the webinar
because “these calls are recorded. I am not allowed to do so.” Moumen advised Andrew how to
avoid detection during the webinar, telling Andrew to use a generic email address and fake
information. Crow also used a fake name when accessing the webinar. Crow recorded part of the
event, sent a copy to Marcella, and discussed the recording with Moumen. Moumen used these
individuals as personal private investigators to surveil Khoury during her webinar, in direct
violation of the protective order. For these reasons, we certainly cannot say the circuit court
abused its discretion in finding Moumen in contempt of court.7
7 To the extent that Moumen also challenges the award of Khoury’s attorney fees and costs, his argument is premised on a successful challenge to the circuit court’s contempt finding. Having determined that the circuit court did not abuse its discretion in finding Moumen in contempt of court, we find the circuit court also did not abuse its discretion in awarding attorney fees and costs to Khoury. - 11 - C. The New Protective Order
On appeal, Moumen argues that the circuit court erred by “adopting Khoury’s argument
that Code § 16.1-253.2 required the trial court to issue a new Protective Order even if Moumen
was in contempt of such order.”8
“Issues of statutory construction are questions of law which we review de novo.” McKee
Foods Corp. v. Cnty. of Augusta, 297 Va. 482, 495 (2019). Code § 16.1-253.2(A) provides that
anyone who violates a provision of a protective order issued under Code § 16.1-279.1 is guilty of
a Class 1 misdemeanor when the violation is of a provision prohibiting the respondent from (1)
“going or remaining upon land, buildings, or premises,” (2) “further acts of family abuse,” (3)
“committing a criminal offense,” or (4) contacting the abused individual. Code § 16.1-253.2(A).
If a criminal defendant is convicted of an offense under Code § 16.1-253.2, “the court shall, in
addition to the sentence imposed, enter a protective order pursuant to § 16.1-279.1 for a specified
period not exceeding two years from the date of conviction.” Code § 16.1-253.2(D). Code
§ 16.1-253.2 sets “criminal penalties for a violation of a protective order issued under Code
§ 16.1-279.1.” Elliott v. Commonwealth, 277 Va. 457, 460 (2009).
Assuming without deciding that Moumen timely challenged the circuit court’s issuance
of a new protective order, the circuit court erred in entering a new protective order under Code
§ 16.1-253.2(D). Existing case law and the statutory text clearly establish that Code
§ 16.1-253.2(D) applies to criminal proceedings—not to civil contempt proceedings. Elliott, 277
Va. at 460; Code § 16.1-253.2. Moumen was neither charged with, nor convicted of, a criminal
8 Moumen claims that “the ends of justice must be applied to reach this issue” if it is “deemed not sufficiently preserved” because “it would be a manifest injustice to let the trial court’s finding stand in light of the trial court’s initial ruling and Khoury’s argument to the contrary.” We will assume without deciding for our analysis here that Moumen preserved this argument for appeal regarding the circuit court’s issuance of a new protective order and whether Code § 16.1-253.2 applies in civil contempt proceedings. - 12 - offense in this case, so Code § 16.1-253.2 does not apply. Elliott, 277 Va. at 460. Cf. Virk v.
Clemens, 81 Va. App. 632, 661-62 (2024) (addressing summary contempt and explaining the
inapplicability of criminal procedural statutes in such proceedings).
Here, the circuit court found Moumen in civil contempt for violating the provision of a
protective order issued under Code § 16.1-279.1 that prohibited him from inducing others to
surveil Khoury. However, that finding does not fall within the class of violations defined as
criminal under Code § 16.1-253.2. Nor could Khoury, as a private individual, prosecute a
criminal action against Moumen. See, e.g., In re Horan, 271 Va. 258, 263 (2006) (“[T]he
conduct of a prosecution on behalf of the people by the prosecutor is an executive act.” (quoting
Genesee Prosecutor v. Genesee Circuit Court, 194 N.W.2d 693, 698 (Mich. 1972))). Despite the
express limitation on the circuit court’s authority to issue a new protective order that is not based on
criminal violations, the circuit court here imposed a new protective order solely on the basis of a
civil contempt finding. The circuit court did not convict Moumen of a criminal offense or
provide him with the constitutional rights of a criminal defendant. Cf. Scialdone v.
Commonwealth, 279 Va. 422, 442-44 (2010) (due process protections apply to proceedings
regarding indirect contempt); United Steelworkers of America v. Newport News Shipbuilding &
Dry Dock Co., 220 Va. 547, 550 (1979) (noting significant differences between civil and
criminal contempt proceedings, including protections for the accused).
The circuit court also could not have issued a new protective order under its general
authority to punish Moumen for his contempt of court or through some other means without
additional process. Although all courts have the inherent authority to punish for contempt, it is
settled law that the legislature may regulate the exercise of the contempt power. Ferrara v.
Commonwealth, 299 Va. 438, 447 (2021). Family protective orders (like the one at issue in this
case) are purely statutory, and the General Assembly has specified in clear terms the
- 13 - circumstances in which a court may issue one. See Code §§ 16.1-253.1, 16.1-253.2(D),
16.1-253.4, 16.1-278.14, 16.1-279.1. It is well-established that the JDR court cannot issue a
protective order without a party first filing a petition requesting that the court issue a protective
order.9 Code § 16.1-260(A) clearly states that “[a]ll matters alleged to be within the jurisdiction
of the [JDR] court shall be commenced by the filing of a petition.” See also Baldwin v. Baldwin,
No. 0310-19-4, slip op. at 10, 2019 Va. App. LEXIS 290, at *14 (Dec. 10, 2019) (concluding
that “a protective order is commenced by petition”).10 Consequently, a circuit court also cannot
issue a new protective order without a party filing a petition because when a party appeals “to the
circuit court as a de novo appeal of a JDR court decision,” then “the circuit court’s jurisdiction
[is] derivative of and thus dependent upon the jurisdiction of the JDR court.” Knight v. Ottrix,
69 Va. App. 519, 526 (2018).11
Here, Khoury did not file a petition for a protective order in the circuit court. In fact, she
did not ask the circuit court to issue a new protective order until well into the December 20, 2023
hearing, which was scheduled as an appeal of the JDR court’s decision finding Moumen in civil
contempt for violating the JDR court’s protective order. Therefore, the circuit court erred in
issuing the new protective order as the circuit court lacked the authority to do so because (1)
Khoury did not file a petition for a new protective order as required in this situation now before
us; and (2) the exception to that requirement in Code § 16.1-253.2(D) did not apply here as
Moumen was not convicted of a criminal offense under Code § 16.1-253.2(A).
9 Indeed, Code § 16.1-279.1(B)(1) indicates that a petitioner must “file a written motion requesting a hearing” even to extend a preexisting protective order. 10 While not binding, unpublished decisions may be cited as persuasive authority. See Rule 5A:1(f); Smith v. Commonwealth, 78 Va. App. 371, 383 n.4 (2023). 11 According to Code § 16.1-296(I), which addresses appeals from JDR courts to circuit courts, “In all cases on appeal, the circuit court in the disposition of such cases shall have all the powers and authority granted by the chapter to the juvenile and domestic relations district court.” - 14 - D. Moumen’s Jail Calls
Finally, Moumen argues that Khoury’s counsel violated Rule 4.4 of the Rules of
Professional Conduct by receiving “attorney-client privileged jail calls” involving Moumen that
Khoury’s counsel “knew or reasonably should have known” were privileged—and that Khoury’s
counsel “failed to notify Moumen or his counsel of such calls or to return them to the sender, and
further disseminated such information to Khoury for review.” Moumen contends that Khoury’s
counsel “deprived Moumen of due process and a fair trial under the 5th and 14th Amendments of
the U.S. Constitution and was fraud by omission or nondisclosure.” Because “this issue was not
preserved at the trial court level,” he asks this Court to invoke the ends-of-justice exception,
“otherwise a manifest injustice would occur.”12
“An assignment of error that does not address the findings, rulings, or failures to rule on
issues in the trial court . . . is not sufficient.” Rule 5A:20(c)(2). “Only ‘sufficient’ assignments
of error are recognized by this Court.” Egan v. Butler, 290 Va. 62, 79 (2015) (citing Rule
5:17(c)(1)(iii)). “[T]he purpose of assignments of error is to point out the errors . . . on which
[an] appellant intends to ask a reversal of the judgment, and to limit discussion to these points.”
Env’t Staffing Acquisition Corp. v. B&R Constr. Mgmt., 283 Va. 787, 792 (2012) (second and
third alterations in original) (quoting Yeatts v. Murray, 249 Va. 285, 290 (1995)). Assignments
of error are not “a mere procedural hurdle an appellant must clear in order to proceed with the
merits of an appeal.” Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 122
(2017). Rather, “[a]ssignments of error are the core of the appeal.” Id. (emphasis in original).
12 On brief to this Court, Khoury’s counsel maintained that neither she, “other attorneys at her firm, the staff at her firm,” nor Khoury ever “accessed Moumen’s privileged attorney- client communications”—i.e., the calls between Moumen and his then-attorney while Moumen was in jail. - 15 - As an appellate court, we are “limited to reviewing the assignments of error” regarding
the trial court’s decision that are “presented by the litigant[s].” Banks v. Commonwealth, 67
Va. App. 273, 289 (2017). Indeed, this Court “sits to review and correct errors of trial courts,”
and we are “limited to the record of the proceedings which have taken place in the trial court.”
Bissell v. Commonwealth, 199 Va. 397, 400 (1957). “When a party files a notice of appeal, that
notice ‘effectively transfers jurisdiction from the lower court to the appellate court and places the
named parties within the jurisdiction of the appellate court.’” McCoy v. McCoy, 55 Va. App.
524, 528 (2010) (quoting Watkins v. Fairfax Cnty. Dep’t of Family Servs., 42 Va. App. 760, 771
(2004)). While an appellant who has failed to preserve an argument or objection before the
circuit court may raise the ends-of-justice exception on appeal to address errors that the appellant
failed to preserve in accordance with Rule 5A:18, our application of that sparingly invoked
exception “is appropriate” only when there was a judgment of the trial court on that issue and
“when the judgment of the trial court was error.” Charles v. Commonwealth, 270 Va. 14, 17
(2005).
Moumen’s assignment of error concerning the jail calls simply fails to challenge any
ruling of the circuit court as the circuit court had already lost jurisdiction over Moumen’s case by
the time this issue arose. The circuit court issued its final order on December 20, 2023, and the
circuit court lost jurisdiction over this case 21 days after that final order—on January 10, 2024.
Moumen maintains that he was unaware that Khoury or her counsel may have had access to
privileged attorney-client information until at least April 19, 2024—more than three months after
this case had left the bosom of the circuit court. The ends-of-justice exception to Rule 5A:18,
therefore, would not even be appropriate for this assignment of error because the circuit court did
not ever issue any judgment or decision regarding Khoury’s alleged access to privileged
- 16 - information to which Moumen could now assign error on appeal. Consequently, this Court
simply cannot reach this assignment of error.
III. CONCLUSION
In short, the circuit court did not err in finding that Khoury’s counsel had not waived the
attorney-client privilege, and we do not disturb its decision prohibiting Moumen from
introducing Exhibit 7 and Exhibit 8 at the hearing as we do not have either exhibit in the record
before us on appeal for us to be able to consider them.
Furthermore, the circuit court did not err in finding Moumen in civil contempt for
violating the JDR court’s protective order, and it did not err in awarding Khoury her attorney
fees and costs at trial. We do not reach Moumen’s last assignment of error concerning the jail
calls because he is not challenging any decision or ruling of the circuit court. However, we
reverse the circuit court’s decision to issue a new protective order because Code § 16.1-253.2 did
not authorize the circuit court to enter a new protective order in this case and because the circuit
court did not otherwise have the authority in this particular situation to issue a new protective
order through other means without additional due process—including the lack of even a petition
from Khoury requesting the circuit court to issue a new protective order. Therefore, we vacate
the new protective order and remand this case for further proceedings consistent with this
opinion.13
Affirmed in part, and reversed, vacated, and remanded in part.
13 Khoury seeks appellate attorney fees incurred in this appeal. An award of appellate attorney fees is discretionary, Friedman v. Smith, 68 Va. App. 529, 545 (2018), and “[w]e award appellate fees only in the unusual case where the arguments on appeal are ‘not fairly debatable under any reasonable construction of the record or the governing legal principles.’” Cabral v. Cabral, 62 Va. App. 600, 613 n.10 (2013) (quoting Brandau v. Brandau, 52 Va. App. 632, 642 (2008)). In this case, because both parties have partially prevailed on appeal, we deny Khoury’s request for appellate attorney fees. - 17 -