Germek v. Germek

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia

JAMES E. GERMEK
OPINION BY
v. Record No. 0712-00-1 JUDGE LARRY G. ELDER
NOVEMBER 28, 2000
MARSHA K. GERMEK

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge

Roy H. Lasris (Lasris & Vannan, P.C., on
brief), for appellant.

Breckenridge Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellee.

James E. Germek (father) appeals from a decree ordering him

to continue to pay child support to Marsha K. Germek (mother) on

behalf of the parties' adult child (daughter). Father contends

the trial court erroneously found that daughter was

(1) "severely and permanently disabled" and (2) "unable to live

independently and support herself," as required to permit the

continuation of support pursuant to Code § 20-124.2(C). 1

Assuming without deciding that daughter had a severe and

permanent disability, we hold the evidence was insufficient to

1
Code § 16.1-278.15 applies to juvenile and domestic
relations district courts, whereas Code § 20-124.2(C) applies to
courts of record. Both statutes provide the identical test for
determining whether a continuation of support is appropriate.
For purposes of consistency, we refer to Code § 20-124.2(C)
throughout this opinion.
establish that disability rendered her unable to live

independently and support herself. Therefore, we vacate the

trial court's award.

I. BACKGROUND

Daughter was born on September 1, 1980, with multiple

physical abnormalities. Upon her parents' divorce in 1995,

daughter continued to reside with mother. Pursuant to the final

decree of divorce, father paid mother $375 per month for

daughter's support until she graduated from high school in June

1999. Shortly prior to daughter's high school graduation,

mother moved the court to order that father continue paying

support for her on the ground that her ongoing physical problems

and related medical expenses rendered her both severely and

permanently disabled and unable to live on her own and support

herself.

The evidence introduced at the hearing on the motion

established that daughter had multiple surgeries for heart,

bladder and bowel dysfunction after birth. At the time of the

October 1999 hearing, she had only one kidney, defecated by

means of a colostomy, and urinated by catheterizing an internal

artificial bladder constructed of stomach tissue. About a year

before the hearing, she underwent voluntary surgery which

converted her external urine collection bag into the internal

artificial bladder she was using at the time of the hearing.

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 Daughter avoids contact activities to protect her one

kidney and the abdominal openings serving her colostomy and

ostomy. Her only other restrictions arise from the fact that

she might have to go to the bathroom more often than other

people and for longer periods of time, has to attend periodic

medical appointments, and experiences intermittent kidney

infections. She experiences no chronic pain and has no mental

limitations.

Daughter worked an average of ten hours per week as a

cashier and sandwich maker at Wendy's for one month one summer

during high school. She left her job at Wendy's to work as a

cashier for Farm Fresh for three months during the school year,

but she chose to resign for reasons unrelated to any of her

medical ailments. At the time of the hearing, daughter was

enrolled as a full-time student at Rappahannock Community

College taking seventeen credit hours and working about seven

hours per week for minimum wage in the college's computer lab.

She was taking business courses and planned to transfer to a

four-year institution after two years of community college. Dr.

Restaino, daughter's pediatric nephrologist, said no medical

reason prevents her from attending college full-time.

Dr. Restaino opined that daughter could not live

independently because of the risk of kidney infection and renal

failure, which could cause her to run a high fever and render

her unable to summon help, just as, in Dr. Restaino's opinion, a

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person with diabetes or severe asthma should not live alone.

Dr. Restaino admitted she was not aware of a time when this had

happened to daughter. She subsequently stated that her opinion

that daughter could not live independently stemmed from the fact

that "[s]he has a medical problem that probably is not wise to

live alone."

Dr. Restaino conceded that the last time daughter

experienced kidney failure was in 1989 and that the last time

she was hospitalized for a kidney infection was 1996. Although

daughter's overall kidney function was somewhat reduced due to

her recurrent infections, Dr. Restaino testified that she would

still be classified as having "normal renal function" when not

suffering from an infection. Further, daughter's infections

were episodic, and prior to her voluntary surgery in 1998, they

had occurred as much as two years apart. Although daughter had

had three infections in the year following her voluntary

surgery, Dr. Restaino opined that the increase likely was due to

daughter's surgery and could decrease as she and her doctors

became more skilled at the methods she used to catheterize

herself. She said that daughter could "go into renal failure

[again] next month" but that it was impossible to predict when

she would experience another infection and that she could also

"go another four or five years without an additional episode."

Even at the time of the hearing, the infections were "months

apart."

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 Daughter said she could live independently under ordinary

circumstances but that, when she is sick, she needs someone to

take care of her because she experiences high fevers,

convulsions, disorientation, vomiting, and blurred vision.

Mother opined that daughter would not make any decisions in her

best interest when she is sick "[i]f the decisions were

[daughter's] to make," but daughter testified that she can

usually tell when she is developing a kidney infection and that

she tells her mother or grandmother and obtains medical

attention.

Dr. Restaino opined that daughter could not support herself

"at her current age" because she could not earn "enough income

to support herself . . . and her need for insurance." She

opined that daughter could not afford to live without insurance

"[b]ecause her current costs would exceed whatever she could

afford. Her potential need for her catheterizations, her doctor

visits, her possibl[e] future surgeries." She also opined

daughter could not afford to lose her insurance because her

medical conditions would become pre-existing.

When asked if daughter was "likely, within a reasonable

degree of medical certainty, to require any additional medical

procedures in the future," Dr. Restaino said, "It's hard to tell

what her future will hold." Dr. Restaino named various

procedures which might become necessary and other procedures

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which daughter might choose to undergo voluntarily, but she did

not opine that any particular surgery would be necessary or

indicate when it would be necessary.

Daughter sees a cardiologist once a year for routine

monitoring and must take antibiotics to protect her heart before

she undergoes routine dental work. She sees Dr. Restaino every

six months for monitoring of her colostomy and ostomy. She also

is under the care of an endocrinologist and takes medication for

hypothyroidism. Daughter opined that she could not support

herself "[b]ecause I can't go to college full-time and work

full-time" and "because I'm supposed to go to doctors every six

months. And if I lived independently, I will not have any

insurance, therefore I would not go to the doctors because I

would have no way to pay for it." At the time of the hearing,

daughter had medical insurance coverage through both mother and

father. It was unclear whether daughter would be eligible for

lifetime benefits under father's policy if she lived

independently or ceased to be a full-time student. The record

contained no evidence of whether daughter could obtain health

insurance coverage of her own and, if so, the cost of same.

Daughter had physician and hospital expenses totaling

$2,374.58 during 1999 and prescription expenses which would have

totaled $793.45 without insurance coverage, for a total of

$3,168.03 through the date of the October 29, 1999 hearing.

Some of these expenditures related to kidney infections daughter

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experienced in May and August of 1999, although what portion

related to these treatments is unclear.

During 1998, daughter incurred bills of $56,681.95 for

medical treatment and prescriptions, but the bulk of these costs

related to the voluntary surgery she underwent to internalize

her urinary collection reservoir. Minus these expenses,

daughter's 1998 medical expenses totaled $4,274.03. Again, the

evidence indicates that the treatment daughter underwent in

November 1998 was for one of her intermittent kidney infections,

and the record does not make clear what portion of the expenses

related to the infection.

During 1997, a year in which daughter underwent no

necessary or voluntary surgeries and experienced no kidney

infections, her routine medical monitoring and prescriptions

totaled $1,226.18.

The trial court held that daughter was permanently and

severely disabled and that her disabilities were likely to

worsen with age. It opined that her disabilities, coupled with

her risk of recurrent renal failure and associated

hospitalizations, likely need for additional surgery "[a]s she

gets older," and "continuing need for numerous medications" make

"[h]er need for medical insurance coverage . . . crucial." It

held she "likely should not live alone" due to the nature of her

condition. Finally, it concluded she was unable to support

herself because, although she would be able to "earn gainful

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employment," her income from full-time employment would be

insufficient to meet her particular needs, which include

"medical insurance to handle the financial burden caused by her

disability." Based on these findings, the trial court ordered

father to continue paying $375 per month to mother and noted

that "continued support should lead to [daughter's eventual]

emancipation."

II. ANALYSIS

Pursuant to Code § 20-124.2(C), a court "may . . . order

the continuation of support for any child over the age of

eighteen who is (i) severely and permanently mentally or

physically disabled, (ii) unable to live independently and

support himself, and (iii) resides in the home of the parent

seeking or receiving child support." In the trial court, the

burden of proving entitlement to a continuation of such support

rests on the party seeking the continuation. In reviewing on

appeal a challenge to the sufficiency of the evidence to prove

such an entitlement, "we consider the evidence in the light most

favorable to the party prevailing in the trial court."

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d

28, 30 (1980).

Appellant contests the sufficiency of the evidence to prove

only the first two prongs of the statute. We have not

previously construed Code § 20-124.2(C) or Code § 16.1-278.15,

see Rinaldi v. Dumsick, 32 Va. App. 330, 333-35, 528 S.E.2d 134,

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136-37 (2000) (holding evidence sufficient to support order of

continuation under Code § 20-124.2(C) without construing precise

meaning or limits of statutory language), and we turn to

principles of statutory construction for guidance. We give the

words of a statute "their common, ordinary and accepted

meaning," absent an indication by the legislature to the

contrary, Gen. Trading Corp. v. Motor Vehicle Dealer Bd., 28 Va.

App. 264, 268, 503 S.E.2d 809, 811 (1998), and we avoid

interpreting each word in a way that makes it repetitious of

another, see W. Va. Educ. Ass'n v. Preston County Bd. of Educ.,

297 S.E.2d 444, 447 (W. Va. 1982). The three subsections of the

statute are joined by the conjunctive, "and," requiring proof of

all elements, see, e.g., Ooten v. Faerber, 383 S.E.2d 774, 779

(W. Va. 1989), and we hold that an award of continuing support

under the statute requires a finding that the statutory elements

are causally linked, i.e., that the child's severe and permanent

disability renders her unable to live independently and support

herself, see Rinaldi, 32 Va. App. at 334-35, 528 S.E.2d at

136-37 (implicitly requiring causal connection and finding

evidence supported its existence).

Neither party disputes that daughter has a physical

disability, 2 and we assume without deciding that her various

2
Father urges us to hold the term "disability" as used in
subsection (i) is limited to a condition that affects one's
ability to pursue gainful employment. However, because
subsection (ii) of the statute incorporates the issue of a

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physical abnormalities constitute a permanent and severe

disability within the meaning of Code § 20-124.2(C). We turn

next to whether daughter was "unable to live independently and

support herself."

We hold first the trial court did not find that daughter is

unable to live independently, a necessary component of the

statute. The trial court found only that "[she] likely should

not live alone because her condition requires a vigilance that

the average person without her limitations does not require."

(Emphasis added). Although it held "[h]er emancipation is not

precluded solely for that reason," the statute requires a

finding that the child is unable to live independently before a

court may order the continuation of support. Therefore, the

court's findings on this issue are insufficient to permit the

continuation of support.

The evidence also would not support a finding that daughter

is unable to live independently. Although mother and Dr.

Restaino opined daughter should not live alone, Dr. Restaino

also opined that a person with asthma or diabetes should not

live alone. Dr. Restaino's reasoning was that some kidney

child's ability to support herself, rules of statutory
construction provide that we should not also read such a
requirement into the legislature's intended definition of
disability under subsection (i). See W. Va. Educ. Ass'n, 297
S.E.2d at 447. Therefore, we consider the impact of daughter's
disability on her ability to obtain gainful employment and to
support herself only in our analysis of subsection (ii).

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infections have a sudden onset and that daughter might quickly

develop a high fever which could cause her to become delirious

and prevent her from calling for help. However, the record

contains no evidence that daughter had experienced sudden

deliriousness recently or ever, indicating instead that, during

the previous several years, she had reacted appropriately when

she experienced symptoms warning her of a kidney infection by

calling a family member or obtaining medical help for herself.

Further, Dr. Restaino also said merely that daughter's medical

problem "probably" made it "[un]wise" for her to live

independently. Therefore, the evidence would not support a

finding that her disability prevented her from living

independently.

This case stands in marked contrast to Rinaldi, in which

the child had both physical and mental disabilities, including a

borderline IQ and weekly seizures, which had increased in

severity for no apparent reason. 32 Va. App. at 332-34, 528

S.E.2d at 135-37. In Rinaldi, a career expert explained "the

practical, vocational hardships imposed by the[] limitations in

[the child's] basic skills" and opined that he was not

"self-supporting" or "capable of living independently." Id. at

334, 528 S.E.2d at 137.

We also hold the evidence is insufficient as a matter of

law to support a finding that daughter's disability rendered her

unable to support herself. The evidence establishes that

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daughter sees a cardiologist and endocrinologist annually for

monitoring of her cardiac and thyroid function and routinely

takes medication for her thyroid condition. She also sees her

nephrologist, Dr. Restaino, every six months for routine

monitoring. Although she suffers from kidney infections from

time to time, she has not been hospitalized for a kidney

infection since 1996, and all recent infections have been

treated with antibiotics on an outpatient basis. After May

1996, daughter was infection-free for two years and had another

infection only after she underwent elective surgery to

internalize her urine collection system. Although daughter

experienced three infections within a year following that

surgery, Dr. Restaino opined that the increase was caused by

this voluntary change and that her physicians hope to determine

and eliminate the cause, thereby decreasing the frequency of her

infections. Dr. Restaino agreed that it was impossible to

predict when daughter would experience another infection and

that she had "no indication that [daughter] won't go another

four or five years without an additional episode." Dr. Restaino

also was unable to opine that daughter would require additional

surgery, saying "It's hard to tell what her future will hold"

and describing future surgery merely as a "possib[ility]" rather

than as a probability or certainty.

Therefore, expenses for daughter's routine medical

monitoring were properly includable in the calculation of her

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fixed medical expenses, but expenses for treatment of possible

future kidney infections or surgery were not. Mother presented

evidence of the total annual cost of daughter's medical care and

prescriptions for 1995 through 1999. Much of this evidence,

however, did not permit a determination of which expenses were

necessitated by routine monitoring and medications and which

resulted from treatment for her elective surgery or intermittent

kidney infections, the rate of recurrence of which was

speculative. In 1997, a year in which daughter underwent no

necessary or voluntary surgeries and experienced no kidney

infections, her routine medical monitoring and prescriptions

totaled $1,226.18.

Key to the trial court's determination that daughter's

disability rendered her unable to support herself was that she

"requires medical insurance to handle the financial burden

caused by her disability" and that "[h]er other resources are

insufficient to meet these needs." Although the availability of

health insurance may be a relevant factor in a court's

determination of whether to award continuing support for a

disabled child who has reached the age of majority, here the

court focused almost exclusively on daughter's need for health

insurance. However, under the facts of this case, the

availability to daughter of medical insurance and the cost of

same was relevant only insofar as it would reduce her outlay for

medical expenses which were certain and not speculative, and the

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record contained insufficient evidence from which the trial

court could make such a determinaton. At the time of the

hearing, daughter had medical coverage through both mother and

father, and it was unclear whether she would be eligible for

continued benefits if she lived independently or ceased to be a

full-time student. The record also contained no evidence

regarding whether daughter could obtain health insurance

coverage of her own and, if so, the cost of same. Finally, as

discussed above, the evidence did not establish the amount of

daughter's medical expenses which were certain and not

speculative. Thus, the court had insufficient evidence from

which to find that daughter's disability rendered her unable to

afford either the cost of her actual medical care and

medications or the cost of insurance and the non-covered portion

of her actual medical care and medications.

Further, the trial court found daughter was able to obtain

"gainful employment," and the record supports such a finding.

Although she was working in the college computer lab only seven

hours per week at the time of the hearing, no evidence indicated

she was physically unable to work full time, and she had prior

experience working as a cashier and sandwich maker. She chose

to attend college full-time, and any inability to work more than

seven hours per week arose from her decision to attend college

rather than her physical disability. Further, that daughter, at

present, may qualify only for minimum wage employment results

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from her age and corresponding lack of education rather than

from her permanent disability. Therefore, no evidence

established that the routine medical expenses resulting from

daughter's disability would have rendered an otherwise

financially independent person unable to support herself. Thus,

the evidence was insufficient to support a finding that any

inability of daughter to support herself was causally related to

her disability as required by Code § 20-124.2(C). 3

For these reasons, we hold the trial court's award of

continuing support was unsupported by the evidence, and we

vacate the award.

Vacated.

3
We make no decision regarding whether mother might obtain
a future order for continued support under Code § 20-124.2(C) if
daughter's condition worsens or whether father might have a
future obligation to support her under Code §§ 20-61, 20-71,
20-72, 20-79 and related statutes.

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