In re Henderson

29 Va. Cir. 164, 1992 Va. Cir. LEXIS 18
CourtCharlottesville County Circuit Court
DecidedOctober 5, 1992
DocketCase No. 7530
StatusPublished

This text of 29 Va. Cir. 164 (In re Henderson) is published on Counsel Stack Legal Research, covering Charlottesville County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Henderson, 29 Va. Cir. 164, 1992 Va. Cir. LEXIS 18 (Va. Super. Ct. 1992).

Opinion

By Judge Paul M. Peatross, Jr.

This case comes before the court on a Motion to Vacate an Administrative Support Order and to Judicially Determine Support. The Petitioner, Ronda Henderson, is the natural mother of Samantha Henderson, age 3. Samantha’s putative father, Marlin Kasemodel, lives in Clear Lake, South Dakota. The daughter does not live with her mother but, at the time this action was brought, resided with her maternal grandfather, Ronald Henderson. On March 29, 1991, the Respondent, Department of Social Services, Division of Child Support Enforcement, issued an Administrative Support Order requiring Ms. Henderson to pay $65.00 per month in current support and assessing a debt for public assistance paid through April, 1991, of $585.00. The amount of the current support obligation was determined according to the statutory guidelines set forth in Va. Code § 20-108.2.

Discussion

Ronda Henderson first maintains that any debt created by the Administrative Support Order may not be collected from her at this time because she is currently receiving public assistance in the form of food stamps. Under Va. Code § 63.1-251:

any payment of public assistance money made to or for the benefit of a dependent child or children or their caretaker creates a debt due and owing to the Department of Social Services by the person or persons who are responsible for [165]*165support of such children in an amount equal to the amount of public assistance money so paid.

See also, Powers v. Department of Social Services, 13 Va. App. 309, 310-11 (1991). Nonetheless, Ms. Henderson points out that a debt created by an administrative support order may not be collected from a responsible person who is the recipient of “public assistance moneys” for the benefit of minor children. Since she is now receiving food stamps for her two younger children, Michael, age 2, and Virginia, age 4 months, Ms. Henderson claims she falls under the statutory exception to § 63.1-251 and should not therefore be required to repay the welfare assistance received by her father, Ronald Henderson.

In interpreting § 63.1-251, this court is bound to give full force and effect to every word contained in the statute. Jones v. Conwell, 227 Va. 176, 181 (1984). A word or clause contained in a statute may only be rejected as surplusage if it appears to have been inserted through inadvertence or mistake and is incapable of any sensible meaning or is otherwise repugnant to the rest of the statute. Burnette v. Commonwealth, 194 Va. 785, 788-89 (1953). No part of a statute may be treated as meaningless unless absolutely necessary. Garrison v. First Federal Savings and Loan of South Carolina, 241 Va. 335, 340 (1991).

In order for Ms. Henderson to avoid the impact of § 63.1-251, she must demonstrate that the food stamps she is now getting for her children qualify her as a recipient of “public assistance moneys” as contemplated by the statute. To interpret the phrase in that way, however, would render the word “moneys” in § 63.1-251 superfluous. “Public assistance” is defined in § 63.1-87 and includes both monetary and non-monetary relief.1 If, as Ms. Henderson suggests, this court were to interpret the phrase “public assistance moneys” to include non-monetary relief as well as monetary support, the word “moneys” would add nothing to the term “public assistance” and would be deprived of any effect. To ensure that the word “moneys” is given some meaning, then, this court must interpret the phrase “public assistance moneys” to exclude non-monetary public assistance, unless there is some strong public policy reason against such a result.

[166]*166An examination of the underlying purposes of § 63.1-251 reveals no such policy concerns. When it exempted persons receiving monetary public assistance from the obligation of repaying prior support, the legislature simply avoided the meaningless and inefficient exercise of taking money from an individual with one hand while at the same time returning it with the other. This would always occur if the responsible parent were receiving monetary public assistance at the time the Department of Social Services sought repayment of prior public assistance.

In the case of non-monetary support, however, no such inefficiencies arise. While it is true that requiring an individual to repay prior public support under § 63.1-251 might reduce the effect of current public assistance being given to him, it would not eliminate it entirely. The Department of Social Services will still be able to bring about an exchange of money for non-monetary assistance, thereby affecting the individual’s spending decisions.

Since the subjection of those receiving non-monetary assistance to the obligations of § 63.1-251 does not frustrate the underlying purpose of the statute, the court finds that the “public assistance moneys” exception applies only to those receiving actual monetary assistance from the Commonwealth. As a result, Ms. Henderson does not come under the statutory exception, and as Samantha’s natural parent, is obliged to repay the support obligation in the amount of $585.00, pursuant to the Administrative Support Order of March 29, 1991.

Application of Support Guidelines

Ms. Henderson also argues that the Department of Social Services improperly applied the support guidelines of Va. Code § 20-108.2 in her case, since it has made no attempt to ascertain the income of the first child’s putative father, Marlin Kasemodel. Under Virginia law, a trial court must use the guidelines found in § 20-108.2 to establish the presumptively correct amount of monthly child support owed by a non-custodial parent. Richardson v. Richardson, 12 Va. App. 18, 19 (1991). Although the guidelines establish the basic child support obligation of both natural parents, the child will typically reside with one of the natural parents, so that no formal support will be forthcoming from the custodial parent.

In the case at bar, however, Samantha lives with neither her natural mother nor her putative father. Since Ms. Henderson believes that [167]*167the support obligation imposed on her by the Administrative Support Order was determined incorrectly, she now asks that this court vacate that Order and reapply the support guidelines, taking both parents’ incomes into account.

The court cannot merely accept Ms. Henderson’s word that Mr. Kasemodel is Samantha’s natural father, though. Under Virginia law, the parentage of an unwed child must be proven by clear and convincing evidence. Va. Code § 20-49.4. The Virginia legislature has instituted a comprehensive procedure for determining the parentage of a child of unwed parents. Va. Code § 20-49.1. Under that procedure, which is civil in nature, proceedings to determine parentage may be instituted upon a petition, verified by oath or affirmation. Va. Code § 20-49.2. When a child is born out of wedlock, the duty of support is owed to the child and not to the mother. Dept. of Social Services v. Johnson, 7 Va. App. 614, 622 (1989). In order to protect the child’s best interests, then, the child must be made a part to a paternity action if he or she is to be bound by the determination of paternity. Id. at 623.

To the court’s knowledge, Ms. Henderson has yet to institute paternity proceedings under § 20-49.1, and she certainly has not proven that Mr.

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Related

Com., Dept. of Social Services v. Johnson
376 S.E.2d 787 (Court of Appeals of Virginia, 1989)
Jones v. Conwell
314 S.E.2d 61 (Supreme Court of Virginia, 1984)
Farley v. Liskey
401 S.E.2d 897 (Court of Appeals of Virginia, 1991)
Richardson v. Richardson
401 S.E.2d 894 (Court of Appeals of Virginia, 1991)
Scott v. Scott
408 S.E.2d 579 (Court of Appeals of Virginia, 1991)
Edwards v. Lowry
348 S.E.2d 259 (Supreme Court of Virginia, 1986)
Burnette v. Commonwealth
75 S.E.2d 482 (Supreme Court of Virginia, 1953)
Garrison v. First Federal Savings & Loan Ass'n
402 S.E.2d 25 (Supreme Court of Virginia, 1991)
Powers v. Commonwealth
411 S.E.2d 230 (Court of Appeals of Virginia, 1991)
Kelley v. Kelley
412 S.E.2d 465 (Court of Appeals of Virginia, 1991)

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Bluebook (online)
29 Va. Cir. 164, 1992 Va. Cir. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-henderson-vacccharlottesv-1992.