Hodges v. COM., DEPT. OF SOCIAL SERVICES

• Citation: 609 S.E.2d 61,45 Va. App. 118
• Decision Date: 15 February 2005
• Docket Number: Record No. 2182-03-3.
• Court: Virginia Court of Appeals
• Parties: Angela M. HODGES v. COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. COMPTROLLER OF VIRGINIA ex rel. Phyllis Hodges.

609 S.E.2d 61

45 Va. App. 118

Angela M. HODGES v. COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. COMPTROLLER OF VIRGINIA ex rel. Phyllis Hodges.

Record No. 2182-03-3.

Court of Appeals of Virginia, Richmond.

February 15, 2005.

David D. Beidler (Legal Aid Society of Roanoke Valley, on briefs), Roanoke, for appellant.

Jack A. Maxwell, Special Counsel (Jerry W. Kilgore, Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Special Counsel; Alice G. Burlinson, Regional Special Counsel, on brief), for appellee.

Before: FITZPATRICK, C.J., BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, and McCLANAHAN, JJ., and ANNUNZIATA, S.J.¹

UPON REHEARING EN BANC

McCLANAHAN, Judge.

This matter comes before the Court on a rehearing en banc from a divided panel decision, Hodges v. Dep't of Soc. Servs. Div. Of Child Support Enforcement, 43 Va.App. 463, 598 S.E.2d 778 (2004), decided July 13, 2004. Angela Hodges appeals the trial court's decision affirming an administrative support order issued by the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement (DCSE), requiring reimbursement of a public assistance debt incurred on behalf of her minor child. She contends that Code § 63.2-1908 precludes DCSE from collecting the debt from her. Upon rehearing en banc, we lift the stay of this Court's July 13, 2004 mandate. The judgment of the trial court is affirmed for the reasons that follow.

I. Background

Angela M. Hodges and Ronald R. Hodges are the parents of N., born in 1989. From 1990 to 1995, N. resided with her paternal grandmother, Phyllis Hodges. During that time, Phyllis Hodges received Temporary Assistance for Needy Families (TANF) benefits from the Department of Social Services for the care of N. Ronald Hodges reimbursed the Department of Social Services for all but $2,860 of the TANF moneys paid for N.'s benefit. In 1995, N. returned to Ronald and Angela Hodges' home. Angela Hodges was not then receiving any public assistance moneys, including TANF. However, the household did receive food stamps and Medicaid assistance for the benefit of her children.

In 2002, DCSE issued an administrative support order seeking reimbursement from Angela Hodges for the balance of the TANF moneys paid on behalf of N. The order required that Angela pay $65 per month toward the debt. Angela Hodges appealed the administrative support order to the juvenile and domestic relations district court, which dismissed the order. DCSE appealed the decision to the circuit court, which found that Code § 63.2-1908 did not bar DCSE from collecting the debt.

II. Analysis

On appeal, questions of statutory interpretation are reviewed de novo by this Court. Issues of "pure statutory interpretation [are] the prerogative of the judiciary." Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). "This axiom stems from basic principles of separation of powers. `It is emphatically the province and duty of the judicial department to say what the law is.'" Finnerty v. Thornton Hall, Inc., 42 Va.App. 628, 635, 593 S.E.2d 568, 571 (2004) (quoting Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803)). Therefore, "we review the trial court's statutory interpretations and legal conclusions de novo." Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) (citing Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).

Angela Hodges contends that Code § 63.2-1908 precludes DCSE from assessing or collecting a TANF debt from her because she is receiving food stamps and Medicaid for children living in her home. Code § 63.2-1908 provides:

Any payment of public assistance money made to or for the benefit of any dependent child or children or their custodial parent creates a debt due and owing to the Department by the person or persons who are responsible for support of such children or custodial parent in an amount equal to the amount of public assistance money so paid.

When DCSE makes payments of public assistance money on behalf of the child of a noncustodial parent, under Code § 63.2-1908, the noncustodial parent becomes obligated to DCSE for the debt. Code § 63.2-1900 defines a noncustodial parent as "a responsible person who is or may be obligated under Virginia law for support of a dependent child or child's caretaker." DCSE paid TANF to Phyllis Hodges, while Angela Hodges was a noncustodial parent, on behalf of Angela Hodges' child, N. Therefore, Angela Hodges, as a person responsible for the support of N., is a parent obligated under the statute.

However, Code § 63.2-1908 includes a proviso: the debt is not to be incurred or collected from a noncustodial parent while she is receiving "public assistance moneys" for the benefit of the child.

Debt created by an administrative support order under this section shall not be incurred by nor at any time be collected from a noncustodial parent who is the recipient of public assistance moneys for the benefit of minor dependent children for the period such person or persons are in such status.

(Emphasis added.)² Hodges contends that in Code § 63.2-1908, the term "public assistance" means the same thing as "public assistance money." She contends that because her household receives "public assistance" in the form of food stamps and Medicaid for the benefit of her children, DCSE is prohibited by the statute from collecting the outstanding TANF debt.

The Virginia Code does not define "public assistance moneys." However, it does define "public assistance" to mean "Temporary Assistance for Needy Families (TANF); auxiliary grants to the aged, blind and disabled; medical assistance; energy assistance; food stamps; employment services; child care; and general relief." Code § 63.2-100. In some parts of Code § 63.2-1908, the legislature used the phrase "public assistance," and in other parts it used the phrase, "public assistance moneys." The question then becomes what the legislature meant by the phrases "public assistance" and "public assistance moneys" in the same statute. The General Assembly is presumed to have given the two different phrases two different meanings. "`When the General Assembly uses two different terms in the same act, it is presumed to mean two different things.'" Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987) (quoting Forst v. Rockingham Poultry Marketing Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981)); see also Morris v. Va. Retirement Sys., 28 Va.App. 799, 805-06, 508 S.E.2d 925, 928 (1999)

("Had the legislature intended that the phrases `any payments'... and `periodic payments for disability or death' ... [in the same statute] meant the same thing, they would have used the same terms.").

Clearly, Code § 63.2-100 defines food stamps and Medicaid as "public assistance." However, that does not make them "public assistance moneys." If the legislature intended to include all forms of public assistance as defined by Code § 63.2-100, it would have only used the phrase "public assistance" in Code § 63.2-1908. If we interpret the phrase "public assistance moneys" to mean all forms of public assistance, the word "moneys" would add nothing to the term "public assistance" and would be deprived of any effect. The word "moneys" would be rendered superfluous. The Virginia Supreme Court has long held that "[w]hen analyzing a statute, we must assume that `the legislature chose, with care, the words it used ... and we are bound by those words as we interpret the statute.'" City of Va. Beach v. ESG Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town and Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)); see also Huffman v. Kite, 198 Va. 196, 199, 93 S.E.2d 328, 330 (1956)

; Frazier v. Commonwealth, 27 Va.App. 131, 135, 497 S.E.2d 879, 881 (1998). Virginia courts are bound, where possible, to give meaning to every word of a statute. See, e.g., Monument Assocs. v. Arlington County Bd., 242 Va. 145, 149, 408 S.E.2d 889, 891 (1991); Baker v. Commonwealth, 28 Va.App. 306, 504 S.E.2d 394 (1998). "It is the duty of the courts to give effect, if possible, to every word of the written law." Moyer v. Commonwealth, 33 Va.App. 8, 35, 531 S.E.2d 580, 593 (2000). 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 which is incapable of any sensible meaning," or is otherwise repugnant to the rest of the statute. Burnette v. Commonwealth, 194 Va. 785, 788-89, 75 S.E.2d 482, 485 (1953). "[N]o part of an act should be treated as meaningless unless absolutely necessary." Garrison v. First Fed. Savings and Loan Ass'n of S.C., 241 Va. 335, 340, 402 S.E.2d 25, 28 (1991) (citing Raven Red Ash Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929)). Therefore, to ensure that the word "moneys" in the phrase "public assistance moneys" is given meaning, its definition must exclude food stamps and Medicaid assistance. "It is a well established rule of construction that a statute ought to be interpreted in such a manner that it may have effect, and not found to be vain and elusive." Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 34, 366 S.E.2d 271, 273 (1988) (en banc) (quoting McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952)). "We must assume that the legislature did not intend to do a vain and useless thing." Williams v. Commonwealth, 190 Va. 280, 293, 56 S.E.2d 537, 543 (1949).

Some forms of public assistance are provided as cash transfers and others are not.³ Virginia TANF is defined as a program in which a "relative can receive monthly cash assistance for the support of his eligible children." Code § 63.2-100; see also 42 U.S.C. § 601 (providing that the purpose of TANF is to "provide assistance to needy...