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Child Support, Spousal Support... Parent Support? - June 2015

June 03, 2015

by Patrick L. Maurer

We have all heard of child support and spousal support. They are regular concepts in any family attorney’s day. But, few of us who regularly engage in family law cases have ever had to deal with parent support. Va. Code Ann. §20-88 (Michie, 2009) in part provides the following:

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.

Va. Code Ann. §20-88 (Michie, 2009)

The key requirement is that the parent must be in necessitous circumstances. The real trick is to figure out what in fact constitutes necessitous circumstances. Looking to Virginia case law is not much help. The closest case that attempts to define “necessitous circumstances” is Mitchell-Powers Hdw. Co. v. Eaton, 171 Va. 255, 198 S.E. 496 (Va. 1938). In Mitchell-Powers the Court was interpreting the predecessor to §20-88, Section 1944a of the Code of 1936. That earlier code section required that the parent be in “destitute and necessitous circumstances” before the child would be required to provide financial assistance to the parent. The court went to Webster to for some guidance:

‘Destitute’ has been defined in Webster's New International Dictionary, Second Edition, as ‘not possessing the necessities of life; in a condition of extreme want; without possessions or resources.’ In that same valuable work ‘necessitous’ is thus defined: ‘Living in or characterized by poverty; needy.’ Again it is defined as ‘narrow, destitute, pinching, pinched, as necessitous circumstances.’

Id. at 262

Using the conjunctive “and”, required that the parent must be destitute and in necessitous circumstances under Section 1944a of the Code of 1936 before an adult child would be required to support his or her parent or parents.   With having “destitute” in the code, the parent would have to be down, out, and out of options in order for a court to tap the children to open their wallets. That is a high standard to meet. Nevertheless, the General Assembly did away the “destitution requirement” when drafting §20-88. In most cases, statutory redrafts clarify code sections and remove ambiguities. §20-88 did quite the opposite. By removing the “destitution requirement” a judge is now left to navigate through muddy facts involving family finances and parent-child relationships to make the subjective decision whether an adult child’s parent’s condition warrants only “necessitous circumstances.” To make things worse the Court in Mitchell-Powers provided the following dicta:

…the son or daughter, if of sufficient earning capacity or income, must do more than relieve the pangs of hunger, provide shelter and furnish only enough clothes to cover the nakedness of the parent. He or she must furnish such support and maintenance as comport with the health, comfort and welfare of normal individuals according to their standards of living, considering his or her own means, earning capacity, and station in life.

Id.

Such ambiguity leaves one to ponder whether a parent with adult children with means owns any accountability of their own financial decisions. While I do not believe the General Assembly contemplated a scenario whereby a parent could imprudently spend themselves into “necessitous circumstances” through bad decisions or risky investments, a simple reading of the code section and the dearth of relevant case law could lead one to consider the possibility. There must be some accountability for making poor financial decisions or failing to plan adequately for retirement. I am confident that the General Assembly did not intend to create a gross responsibility shift from parent to child that potentially exists in this statute. However, it may be time for some direction from the General Assembly regarding the appropriate scenario where the code section applies.   Unless, of course, the Court of Appeals gets a test case beforehand and we receive some direction.