COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
WILLIAM RUSSELL
OPINION BY
v. Record No. 1315-00-4 JUDGE NELSON T. OVERTON
MAY 1, 2001
CHARLOTTE RUSSELL, WYOTT RUSSELL AND
TERI ESPINOSA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Sandra L. Havrilak (Marlene M. Hahn; Hicks &
Havrilak, P.C., on brief), for appellant.
No brief or argument for appellees.
William Russell (grandfather) appeals the decision of the
circuit court awarding child support to Charlotte Russell
(grandmother). On appeal, grandfather contends the circuit court
erred by finding that, as a joint legal custodian of his
grandchild, he owes that child a duty of support despite the fact
that the parents retain residual parental rights and are capable
of providing support for their child. For the reasons that
follow, we agree with grandfather and reverse the decision of the
circuit court.
BACKGROUND
On April 6, 1999, the Fairfax County Juvenile and Domestic
Relations District Court entered a consent order granting joint
legal custody of Alexandra Russell, then eight years old, to her
paternal grandparents. Grandfather and grandmother have been
divorced since 1993. The consent order delineates, in detail, the
visitation schedule that Alexandra's grandparents and parents must
follow. The order clearly provides that mother's and father's
parental rights are still in force and their consent is
specifically required before certain major decisions may be made
concerning Alexandra. However, the order does not mention the
issue of Alexandra's support.
On April 9, 1999, grandmother filed a petition for child
support against grandfather. Grandmother did not name Alexandra's
parents in the suit. Grandfather filed a demurrer and moved to
join Teri Espinosa (mother) and Wyott Russell (father). The
juvenile court overruled grandfather's demurrer, joined mother and
father to the suit, and ordered grandfather, mother and father to
pay support to grandmother, with whom Alexandra lives.
Grandfather noted his appeal to the circuit court and again filed
a demurrer. The circuit court overruled the demurrer, finding
that grandfather, as a legal custodian, was financially
responsible for supporting Alexandra, citing Code § 16.1-228. On
May 5, 2000, the court entered an order finding that grandfather,
grandmother, father, and mother all owe a duty of support and
applied the guidelines for determining child support set forth in
Code § 20-108.2 by adding the gross incomes of all four parties
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and then allocating the support amount due from each party in
proportion to his or her income. 1
ANALYSIS
Grandfather and grandmother were granted joint legal custody
of Alexandra pursuant to a consent order. Grandmother has
physical custody. "Legal custody" is defined as
(i) a legal status created by court order
which vests in a custodian the right to have
physical custody of the child, to determine
and redetermine where and with whom he shall
live, the right and duty to protect, train
and discipline him and to provide him with
food, shelter, education and ordinary
medical care, all subject to any residual
parental rights and responsibilities or (ii)
the legal status created by court order of
joint custody as defined in § 20-107.2.
Code § 16.1-228. Grandfather's rights and duties with regard to
Alexandra are "all subject to any residual parental rights and
responsibilities." Id. "Residual parental rights and
responsibilities" are defined as:
all rights and responsibilities remaining
with the parent after the transfer of legal
custody or guardianship of the person,
including but not limited to the right of
visitation, consent to adoption, the right
to determine religious affiliation and the
responsibility for support.
1
The trial court found the monthly incomes of the parties
to be as follows:
Grandmother - $3,083.00
Grandfather - $5,000.00
Father - $6,760.00
Mother - $867.00
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Id. Because they retain their residual parental rights, mother
and father have a clear duty to provide support for Alexandra.
See id.; Code § 20-124.2. "It is well settled that both parents
owe a duty of support to their child." Commonwealth v.
Chamberlain, 31 Va. App. 533, 538, 525 S.E.2d 19, 20-21 (2000).
Code § 20-124.2 provides, in pertinent part, that "[t]he
court may order that support be paid for any child of the
parties." The term "parties" in this section refers back to
Code § 20-107.2, which states:
Upon entry of a decree providing (i) for the
dissolution of a marriage, (ii) for a
divorce, whether from the bond of matrimony
or from bed and board, (iii) that neither
party is entitled to a divorce, or (iv) for
separate maintenance, the court may make
such further decree as it shall deem
expedient concerning the custody or
visitation and support of the minor children
of the parties as provided in Chapter 6.1
(§ 20-124.1 et seq.) of Title 20, including an
order that either party provide health care
coverage.
Grandfather is not a "party" under Code § 20-107.2. The
circuit court did not have the authority to require support
payments from grandfather to grandmother. We have held that a
former stepparent has no duty to support his or her former
spouse's child absent a clear agreement to do so or the formal
adoption of the child. See NPA v. WBA, 8 Va. App. 246, 249, 380
S.E.2d 178, 180 (1989). Grandfather did not contractually
obligate himself to support Alexandra, and he has not adopted
her. Instead, mother and father, because they retain their
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residual parental rights, are the sole parties who have a duty
of support and in the instant case, the financial ability to
support Alexandra. Under Code § 16.1-228, grandmother and
grandfather, as legal custodians, have the duty to provide
Alexandra "with food, shelter, education and ordinary medical
care," but no more. Grandfather must provide these necessities
for Alexandra during the periods of the year that she stays with
him, but he is not similarly responsible for Alexandra while she
is staying with grandmother.
Accordingly, the decision of the trial court is reversed
and the case remanded to determine the support obligations of
mother and father pursuant to the support guidelines of Code
§ 20-108.2. In Reid v. Reid, 245 Va. 409, 429 S.E.2d 208
(1993), the Supreme Court announced that under Code § 20-107.1,
a trial court does not have the authority to order restitution
of amounts paid pursuant to a spousal support order when that
order has been reversed on appeal. By contrast, in this case,
the trial court did not have the authority to order grandfather
to make child support payments. Consequently, the support
obligations of mother and father shall be applied retroactively
to the date of filing of grandmother's petition, and grandfather
shall be reimbursed for any support payments he made under the
circuit court's order.
Reversed and remanded.
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