Germek v. Germek

• Decision Date: 28 November 2000
• Docket Number: Record No. 0712-00-1.
• Citation: 537 S.E.2d 596,34 Va. App. 1
• Court: Virginia Court of Appeals
• Parties: James E. GERMEK v. Marsha K. GERMEK.

537 S.E.2d 596

34 Va. App. 1

James E. GERMEK v. Marsha K. GERMEK.

Record No. 0712-00-1.

Court of Appeals of Virginia, Chesapeake.

November 28, 2000.

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

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

Present: BENTON, ELDER and FRANK, JJ.

ELDER, Judge.

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 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.

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 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."

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 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 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 "filler 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 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...