COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
JESSICA HOLLIDAY LAVERTY, n/k/a
JESSICA HOLLIDAY
v. Record No. 0059-95-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
THOMAS KENT HOLLIDAY LAVERTY OCTOBER 17, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Edward V. O'Connor, Jr. (Byrd, Mische, Bevis,
Bowen, Joseph & O'Connor, P.C., on briefs), for
appellant.
Thomas Laverty, pro se (James W. Korman; Bean,
Kinney & Korman, P.C., on brief), for appellee.
Jessica Holliday Laverty (mother) appeals the trial court's
decision awarding child support to Thomas Kent Holliday Laverty
(father). Mother argues that the trial court erred in: (1)
applying the shared custody guidelines in Code § 20-108.2(G)(3),
and (2) failing to consider all of mother's work-related child
care expenses. For the reasons that follow, we reverse and
remand the shared custody guidelines issue and affirm on the
child care expenses issue.
BACKGROUND
The parties were married on December 31, 1977. They had one
child, Cory, who was born on November 21, 1987. The parties
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
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separated on April 11, 1992, and a final decree of divorce was
entered on July 16, 1993. On August 19, 1994, father filed a
motion to modify child support and for other relief. A hearing
was held on November 23, 1994. At that hearing, the evidence
established that father's visitation with the child included:
(1) every other weekend from after school on Friday to Monday
morning; (2) alternating Wednesdays from after school to 8:30
p.m.; (3) intervening Wednesdays from after school to Thursday
morning; and (4) alternating holidays. Father argued that he
should be credited with a "day" of custody for each alternating
and intervening Wednesday and thus the shared custody guidelines
in Code § 20-108.2(G)(3) applied to determining support.
In the final order entered December 2, 1994, the trial court
counted each alternating and intervening Wednesday as a "day" of
custody under the shared custody guidelines and credited father
with 148 days of custody. The trial court accepted father's
estimate of $217 per month for mother's work-related child care
expenses as reasonable child care costs and ordered father to pay
$191 per month in child support.
DEFINITION OF A DAY UNDER SHARED CUSTODY GUIDELINES
Mother argues that the trial court erred in crediting father
with 148 days of custody under the shared custody guidelines.
Code § 20-108.2(G)(3), defining shared custody, provides as
follows:
In cases involving shared custody, the
amount of child support to be paid is the
difference between the amounts owed by each
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parent to the other parent, with the parent
owing the larger amount paying the difference
to the other parent.
* * * * * * *
The shared custody rules set forth
herein apply when each parent has physical
custody of a child or children born of the
parties . . . for more than 110 days of the
year.
In Ewing v. Ewing, ___ Va. App. ___, ___ S.E.2d ___ (1995) (en
banc), this Court recently held that "the General Assembly
intended that for the purpose of applying the provisions of Code
§ 20-108.2(G)(3)(c), a day should be construed to be any
continuous twenty-four hour period." Id. at ___, ___ S.E.2d at
___.
Under this analysis, father failed to establish that he had
custody of the child for more than 110 days per year and that the
shared custody rule in Code § 20-108.2(G)(3) applied. Father's
total custody is 106 days when the alternating and intervening
Wednesday visitations are excluded. Thus, we hold that the trial
court erred in applying the shared custody guidelines in this
case.
CHILD CARE EXPENSES
Mother also argues that the trial court erred in failing to
consider all of her work-related child care expenses. However,
mother did not list this issue in her Designation of Record and
Statement of Questions to be Presented filed on March 7, 1995.
In the absence of an agreement regarding designation of the
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record, "counsel for appellant shall file with the clerk of the
Court of Appeals a statement of the questions to be presented and
a designation of the contents to be included in the appendix
within fifteen days after the filing of the record." Rule
5A:25(d). Mother failed to include the issue of the trial
court's determination of her child care expenses. Because this
issue was not raised, we do not consider this issue on the
merits.
Accordingly, we reverse and remand for recalculation of
child support consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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